(HC) Garrett v. State of California et al

Filing 6

ORDER signed by Chief District Judge Kimberly J. Mueller on 1/7/2022 ADOPTING 5 Findings and Recommendations in full. This action is DISMISSED without prejudice for lack of prosecution and failure to comply with court rules and orders. The Court DECLINES to issue a certificate of appealability. CASE CLOSED. (Huang, H)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CAMEO LOREE GARRETT, 11 12 13 Petitioner, v. No. 2:21-CV-1781-KJM-DMC-P ORDER STATE OF CALIFORNIA, et al., 14 Respondents. 15 16 Petitioner, a pre-trial detainee proceeding pro se, brings this petition for a writ of 17 habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 18 Judge pursuant to Eastern District of California local rules. 19 On December 3, 2021, the Magistrate Judge filed findings and recommendations 20 herein which were served on the parties and which contained notice that the parties may file 21 objections within the time specified therein. No objections to the findings and recommendations 22 have been filed. 23 The court presumes that any findings of fact are correct. See Orand v. United 24 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 25 reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) 26 (“[D]eterminations of law by the magistrate judge are reviewed de novo by both the district court 27 and [the appellate] court . . . .”). Having reviewed the file, the court finds the findings and 28 recommendations to be supported by the record and by the proper analysis. 1 1 Although it appears from the file that plaintiff’s copy of the findings and 2 recommendations was returned, plaintiff was properly served. It is the plaintiff’s responsibility to 3 keep the court apprised of his current address at all times. Under Local Rule 182(f), service of 4 documents at the record address of the party is fully effective. 5 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the 6 Court has considered whether to issue a certificate of appealability. Before Petitioner can appeal 7 this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 8 22(b). Where the petition is denied on the merits, a certificate of appealability may issue under 9 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 10 constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 11 appealability indicating which issues satisfy the required showing or must state the reasons why 12 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 13 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 14 jurists of reason would find it debatable whether the district court was correct in its procedural 15 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 16 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 17 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)). For the reasons 18 set forth in the Magistrate Judge’s findings and recommendations, the Court finds that issuance of 19 a certificate of appealability is not warranted in this case. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. The findings and recommendations filed December 3, 2021, are adopted in 2. This action is dismissed without prejudice for lack of prosecution and 22 23 24 full; failure to comply with court rules and orders; 25 3. The Court declines to issue a certificate of appealability; and 26 4. The Clerk of the Court is directed to enter judgment and close this file. 27 DATED: January 7, 2022. 28 2

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