(HC) Stewart v. Macomber, No. 1:2021cv00063 - Document 13 (E.D. Cal. 2021)

Court Description: ORDER ADOPTING 9 Findings and Recommendations and Dismissing Petition, Certificate of Appealability Decline, signed by District Judge Dale A. Drozd on 04/23/2021. CASE CLOSED. (Maldonado, 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 GREGORY W. STEWART, 12 Petitioner, 13 v. 14 J. MACOMBER, 15 No. 1:21-cv-00063-DAD-HBK (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING PETITION Respondent. (Doc. No. 9) 16 17 18 Petitioner Gregory W. Stewart is a state prisoner proceeding pro se and in forma pauperis 19 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) The matter 20 was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 21 Rule 302. 22 On March 10, 2021, the assigned magistrate judge issued findings and recommendations, 23 recommending that the pending petition be dismissed because it is successive and petitioner has 24 not obtained leave from the Ninth Circuit to proceed with a second or successive petition. (Doc. 25 No. 9.) The pending findings and recommendations were served on petitioner with notice that 26 any objections thereto were to be filed within thirty (30) days of service. (Id. at 3.) On April 7, 27 2021, petitioner filed a motion for reconsideration and objections to the findings and 28 recommendations, which the court construes as petitioner’s objections to the findings and 1 1 recommendations. (Doc. No. 11.) Those objections do not appear to address the fact that 2 petitioner has not obtained an order from the Ninth Circuit authorizing him to file a second or 3 successive petition. 4 In addition, having concluded that the pending petition must be dismissed, the court now 5 turns to whether a certificate of appealability should issue. A state prisoner seeking a writ of 6 habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an 7 appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 8 (2003); 28 U.S.C. § 2253. Where, as here, the court denies habeas relief on procedural grounds 9 without reaching the underlying constitutional claims, the court should issue a certificate of 10 appealability “if jurists of reason would find it debatable whether the petition states a valid claim 11 of the denial of a constitutional right and that jurists of reason would find it debatable whether the 12 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 13 In the present case, the court finds that reasonable jurists would not find the court’s determination 14 that the petition should be dismissed debatable or wrong, or that petitioner should be allowed to 15 proceed further. Therefore, the court declines to issue a certificate of appealability. 16 Accordingly, 17 1. 18 The findings and recommendations issued on March 10, 2021 (Doc. No. 9) are adopted in full; 19 2. The petition for writ of habeas corpus is dismissed; 20 3. The court declines to issue a certificate of appealability; and 21 4. The Clerk of the Court is directed to close this case. 22 23 24 IT IS SO ORDERED. Dated: April 23, 2021 UNITED STATES DISTRICT JUDGE 25 26 27 28 2