(HC) Barton v. Gastelo

Filing 13

ORDER signed by Chief District Judge Kimberly J. Mueller on 9/14/2022 ADOPTING 12 Findings and Recommendations in Full; Petitioner's 10 second amended petition is DISMISSED without leave to amend; and the court declines to issue the certificate of appealability. CASE CLOSED.(Perdue, C.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM RAY BARTON, 12 Petitioner, 13 14 v. No. 2:21-cv-01933-KJM-JDP (HC) ORDER JOSIE GASTELO, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 17 18 corpus under to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as 19 provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On May 16, 2022, the magistrate judge filed findings and recommendations herein, which 20 21 were served on petitioner and which contained notice to petitioner that any objections to the 22 findings and recommendations were to be filed within fourteen days. Petitioner has not filed 23 objections to the findings and recommendations. The court presumes that any findings of fact are correct. See Orand v. United States, 24 25 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed 26 de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law 27 by the magistrate judge are reviewed de novo by both the district court and [the appellate] court 28 ///// 1 1 . . . .”). Having reviewed the file, the court finds the findings and recommendations to be 2 supported by the record and by the proper analysis. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The findings and recommendations filed May 16, 2022, are adopted in full; 5 2. Petitioner’s second amended petition, ECF No. 10, is dismissed without leave to 6 amend; 7 3. The Clerk of Court is directed to close this case; and 8 4. The court declines to issue the certificate of appealability referenced in 28 U.S.C. 9 10 § 2253. DATED: September 14, 2022. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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