(HC) Fountain v. Yates, et al, No. 2:2004cv02350 - Document 69 (E.D. Cal. 2010)
Court Description: ORDER signed by Judge Garland E. Burrell, Jr on 7/12/10 ORDERING the Findings and Recommendations 65 are ADOPTED IN FULL; petitioner Request for Reconsideration 58 is DISMISSED WITHOUT PREJUDICE; and a certificate of appealability SHALL NOT ISSUE in this action. (Carlos, K)
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(HC) Fountain v. Yates, et al Doc. 69 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CARL McCEE FOUNTAIN, 11 12 13 14 Petitioner, vs. JAMES YATES, Warden, Respondent. 15 16 No. CIV S-04-2350 GEB DAD P ORDER / Petitioner, a state prisoner proceeding pro se, has filed this application for a writ 17 of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 18 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On June 4, 2010, the magistrate judge filed findings and recommendations herein 20 which were served on all parties and which contained notice to all parties that any objections to 21 the findings and recommendations were to be filed within twenty-one days. Petitioner has filed 22 objections to the findings and recommendations. 23 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 24 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire 25 file, the court finds the findings and recommendations to be supported by the record and by 26 proper analysis. 1 Dockets.Justia.com 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed June 4, 2010, are adopted in full; 3 2. Petitioner’s March 19, 2010, request for reconsideration, construed as a 4 successive habeas petition (Docket No. 58), is dismissed without prejudice to its refiling after 5 obtaining authorization from the Ninth Circuit Court of Appeals; and 6 3. For the reasons set forth in the magistrate judge’s June 4, 2010 findings and 7 recommendations, petitioner has not made a substantial showing of the denial of a constitutional 8 right. Accordingly, a certificate of appealability should not issue in this action. 9 Dated: July 12, 2010 10 11 12 GARLAND E. BURRELL, JR. United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2
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