(HC) Kelsaw v. Horel, No. 2:2008cv01612 - Document 55 (E.D. Cal. 2010)

Court Description: ORDER signed by Judge Morrison C. England, Jr on 11/29/10 ORDERING the findings and recommendations filed 9/14/10 are ADOPTED IN FULL; petitioner's application for a writ of habeas corpus is DENIED and a certificate of appealability SHALL NOT ISSUE. CASE CLOSED. (Carlos, K)
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(HC) Kelsaw v. Horel Doc. 55 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 RUFUS HARTY KELSAW, IV, 11 Petitioner, 12 13 No. CIV S-08-1612 MCE CHS P vs. BOB HOREL, 14 Respondent. 15 ORDER / 16 Petitioner, a state prisoner proceeding pro se, filed an application for a writ of 17 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 General Order No. 262. 19 On September 14, 2010, the magistrate judge’s findings and recommendations 20 were filed and served on both parties. The findings and recommendations contained notice to all 21 parties that any objections to the findings and recommendations were to be filed within twenty 22 days. Petitioner’s objections and respondent’s reply to petitioner’s objections are before the 23 court. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72- 25 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire 26 file, the court finds the findings and recommendations to be supported by the record and by 1 Dockets.Justia.com 1 proper analysis. The petition will be denied. 2 If petitioner wishes to appeal the court’s decision, a certificate of appealability 3 must issue. 28 U.S.C. § 2253(c)(1); Hayward v. Marshall, 603 F.3d 546, 554 (9th Cir. 2010) (en 4 banc). A certificate of appealability may issue where “the applicant has made a substantial 5 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of 6 appealability must “indicate which specific issue or issues satisfy” the requirement. 28 U.S.C. 7 § 2253(c)(3). 8 9 A certificate of appealability should be granted for any issue that petitioner can demonstrate is “‘debatable among jurists of reason,’” could be resolved differently by a different 10 court, or is “‘adequate to deserve encouragement to proceed further.’” Jennings v. Woodford, 11 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).1 12 In this case, petitioner failed to make substantial showing of the denial of a 13 constitutional right. Accordingly, a certificate of appealability shall not issue in this case. 14 For the foregoing reasons, IT IS HEREBY ORDERED that: 15 1. The findings and recommendations filed September 14, 2010 are adopted in full; 16 2. Petitioner’s application for a writ of habeas corpus is denied; and 17 3. A certificate of appealability shall not issue. 18 Dated: November 29, 2010 19 ________________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 1 Except for the requirement that appealable issues be specifically identified, the standard for issuance of a certificate of appealability is the same as the standard that applied to issuance of a certificate of probable cause. Jennings, at 1010. 2