(HC) Dews v. Biter, No. 1:2013cv00626 - Document 27 (E.D. Cal. 2013)

Court Description: ORDER ADOPTING 25 Findings and Recommendations; ORDER DENYING Petitioner's 24 Motion for Reconsideration; ORDER DECLINING to Issue a Certificate of Appealability, signed by District Judge Anthony W. Ishii on 9/27/2013. (Marrujo, C)
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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 CLARENCE LEON DEWS, Petitioner, 7 8 v. 9 MARTIN BITER, Warden of Kern Valley State Prison, 10 Respondent. 11 Case No. 1:13-cv-00626-AWI-SKO-HC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (DOC. 25) ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION (DOC. 24) ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 12 13 14 Petitioner is a state prisoner proceeding pro se and in forma 15 pauperis with a petition for writ of habeas corpus pursuant to 28 16 U.S.C. § 2254. The matter has been referred to the Magistrate Judge 17 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. On August 27, 2013, the Magistrate Judge filed findings and 18 19 recommendations that Petitioner’s motion for reconsideration of the 20 Court’s dismissal of the petition as a successive petition and 21 decision not to issue a certificate of appealability. The findings 22 and recommendations were served on the parties on the same date, and 23 they informed the parties that objections could be filed within 24 thirty (30) days of service, and any reply could be filed no later 25 than fourteen (14) days after service of any objections. Petitioner filed objections on September 17, 2013. No reply 26 27 will be filed because Petitioner is the only party who has appeared 28 in the action. 1 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), 2 this Court has conducted a de novo review of the case. The 3 undersigned has carefully reviewed the entire file, including 4 Petitioner’s objections, and has considered the objections. The 5 undersigned has determined there is no need to modify the findings 6 and recommendations based on the points raised in the objections. 7 The Court finds that the report and recommendations are supported by 8 the record and proper analysis. 9 Further, unless a circuit justice or judge issues a certificate 10 of appealability, an appeal may not be taken to the Court of Appeals 11 from the final order in a habeas proceeding in which the detention 12 complained of arises out of process issued by a state court. 28 13 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 14 (2003). A certificate of appealability may issue only if the 15 applicant makes a substantial showing of the denial of a 16 constitutional right. ' 2253(c)(2). Under this standard, a 17 petitioner must show that reasonable jurists could debate whether 18 the petition should have been resolved in a different manner or that 19 the issues presented were adequate to deserve encouragement to 20 proceed further. Miller-El v. Cockrell, 537 U.S. at 336 (quoting 21 Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should 22 issue if the Petitioner shows that jurists of reason would find it 23 debatable whether the petition states a valid claim of the denial of 24 a constitutional right or that jurists of reason would find it 25 debatable whether the district court was correct in any procedural 26 ruling. 27 Slack v. McDaniel, 529 U.S. at 483-84. In determining this issue, a court conducts an overview of the 28 claims in the habeas petition, generally assesses their merits, and 2 1 determines whether the resolution was wrong or debatable among 2 jurists of reason. Id. It is necessary for an applicant to show 3 more than an absence of frivolity or the existence of mere good 4 faith; however, it is not necessary for an applicant to show that 5 the appeal will succeed. Miller-El v. Cockrell, 537 U.S. at 338. A district court must issue or deny a certificate of 6 7 appealability when it enters a final order adverse to the applicant. 8 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does 9 not appear that reasonable jurists could debate whether the petition 10 should have been resolved in a different manner. Petitioner has not 11 made a substantial showing of the denial of a constitutional right. 12 Accordingly, the Court will decline to issue a certificate of 13 appealability with respect to the Court’s ruling on Petitioner’s 14 motion for reconsideration. 15 Accordingly, it is ORDERED that: 16 1. The findings and recommendations filed on August 27, 2013, 17 are ADOPTED in full; and 2. 18 The Petitioner’s motion for reconsideration of the 19 dismissal of the petition and decision not to issue a certificate of 20 appealability is DENIED; and 3. 21 The Court DECLINES to issue a certificate of appealability. 22 23 24 IT IS SO ORDERED. 25 Dated: September 27, 2013 26 SENIOR DISTRICT JUDGE DEAC_Signature-END: 27 0m8i788 28 3