(HC) Downs, IV v. Beard, No. 2:2015cv00724 - Document 38 (E.D. Cal. 2018)

Court Description: ORDER signed by District Judge Kimberly J. Mueller on 3/27/2018 ADOPTING 31 Findings and Recommendations in Full. The 25 and 26 Motions for Relief and Sanctions are DENIED and the 1 Petition for Writ of Habeas Corpus is DISMISSED for failure to prosecute. The Court DECLINES to issue the certificate of appealability referenced in 28 U.S.C.§ 2253. CASE CLOSED. (Fabillaran, J)

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(HC) Downs, IV v. Beard Doc. 38 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY DOWNS, 12 Petitioner, 13 14 No. 2:15-cv-0724 KJM DB P v. ORDER JEFFREY BEARD, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 17 18 corpus under 28 U.S.C. § 2254. Petitioner’s application was filed on April 1, 2015. (ECF No. 1). 19 The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 20 636(b)(1)(B) and Local Rule 302. On January 16, 2018, the magistrate judge issued findings and recommendations, which 21 22 were served on petitioner and which contained notice to petitioner that any objections to the 23 findings and recommendations were to be filed within fourteen days. On January 26, 2018, petitioner filed a motion for extension of time to file objections to 24 25 the findings and recommendations. (ECF No. 32). The magistrate judge granted the motion, 26 giving petitioner until February 28, 2018 to file his objections. (ECF No. 33). At that time, the 27 //// 28 //// 1 Dockets.Justia.com 1 court warned petitioner that no further extensions of time would be granted absent exigent 2 circumstances. (Id. at 2). The magistrate judge’s decision to deny petitioner any additional 3 extensions of time appears to stem from the fact that petitioner has a well-documented history of 4 requesting extensions of time in this matter. (See ECF No. 31 at 2 (documenting court’s grant of 5 six extensions of time to petitioner to file an amended habeas petition and court’s denial therein 6 of two subsequent extension requests to file same)). 7 On February 26, 2018, petitioner filed a second motion for extension of time to file 8 objections to the findings and recommendations. (ECF No. 36). Petitioner’s extension request 9 was denied given his failure to show the existence of exigent circumstances that would warrant a 10 grant of the motion. (See ECF No. 37 at 3). 11 The court presumes that any findings of fact are correct. See Orand v. United States, 602 12 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 13 See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having reviewed 14 the file, the court finds the findings and recommendations to be supported by the record and by 15 the proper analysis. 16 Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts 17 requires this court to “issue or a deny a certificate of appealability when it enters a final order 18 adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A certificate of appealability may 19 issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial 20 of a constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 21 appealability indicating which issues satisfy the required showing or must state the reasons why 22 such a certificate should not issue. Fed. R. App. P. 22(b). For the reasons set forth in these 23 findings and recommendations it does not appear the claims petitioner has sought to raise in this 24 action are cognizable under the federal habeas corpus statute or that petitioner has made a 25 substantial showing of the denial of a constitutional right. Accordingly, this court will not issue a 26 certificate of appealability. 27 ///// 28 ///// 2 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations issued January 16, 2018 (ECF No. 31) are 3 ADOPTED in full; 4 2. Petitioner’s motions for relief and sanctions (ECF Nos. 25, 26) are DENIED, 5 3. Petitioner’s petition for writ of habeas corpus (ECF No. 1) is DISMISSED for failure 6 to prosecute; and 7 4. The court declines to issue the certificate of appealability referenced in 28 U.S.C. 8 § 2253. 9 DATED: March 27, 2018. 10 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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