(HC) Harper v. CDCR, No. 2:2020cv01119 - Document 11 (E.D. Cal. 2020)

Court Description: ORDER signed by District Judge Troy L. Nunley on 12/17/2020 ADOPTING 7 Findings and Recommendations in full; The 1 Petition for Writ of Habeas Corpus is summarily DISMISSED for failure to state a claim; Petitioner's 9 First Amended Peti tion for Writ of Habeas Corpus is DISMISSED and, to the extent it is construed as a Motion for Leave to Amended the Petition, such Motion is DENIED; and The court DECLINES to issue the certificate of appealability referenced in 28 U.S.C. § 2253. CASE CLOSED. (Mena-Sanchez, L)

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(HC) Harper v. CDCR Doc. 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL HARPER, 12 Petitioner, 13 14 15 No. 2:20-cv-01119-TLN-GGH ORDER v. CDCR, Respondent. 16 17 Petitioner Daniel Harper (“Petitioner”), a state prisoner proceeding pro se, has filed an 18 Application for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The matter was referred 19 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On June 19, 2020, the magistrate judge filed findings and recommendations herein which 21 were served on Petitioner and which contained notice to Petitioner that any objections to the 22 findings and recommendations were to be filed within fourteen days. (ECF No. 7.) On July 6, 23 2020, Petitioner filed Objections to the Findings and Recommendations, as well as a “First 24 Amended Petition for Writ of Habeas Corpus.” (ECF Nos. 9–10.) 25 This Court reviews de novo those portions of the proposed findings of fact to which 26 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 27 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see 28 also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed 1 Dockets.Justia.com 1 findings of fact to which no objection has been made, the Court assumes its correctness and 2 decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th 3 Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi 4 Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 5 Having carefully reviewed the entire file under the applicable legal standards, the Court 6 finds the Findings and Recommendations to be supported by the record and by the magistrate 7 judge’s analysis. 8 The Court notes Petitioner’s so called “Objections” do not actually challenge or object to 9 any of the findings in the Findings and Recommendations. (See ECF No. 10.) As such, they are 10 overruled. As to Petitioner’s First Amended Petition, filed concurrently with his Objections and 11 without leave of the Court (ECF No. 9), the Court construes the filing as a motion seeking leave 12 to amend and hereby DENIES Petitioner’s motion. Furthermore, the proposed Amended Petition 13 raises the same claims as the original Petition, which were correctly addressed and rejected by the 14 Findings and Recommendations. (See ECF Nos. 1, 7, 9.) 15 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has 16 considered whether to issue a certificate of appealability. Before Petitioner can appeal this 17 decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 18 Where the petition is denied on the merits, a certificate of appealability may issue under 28 19 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 20 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. See Fed. R. App. P. 22(b). Where the petition is dismissed on 23 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 24 jurists of reason would find it debatable whether the district court was correct in its procedural 25 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 26 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 27 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). For the reasons set forth in the 28 /// 2 1 Findings and Recommendations (ECF No. 7), the Court finds that issuance of a certificate of 2 appealability is not warranted in this case. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The Findings and Recommendations filed June 19, 2020 (ECF No. 7), are adopted in 5 full; 6 7 2. The Petition for Writ of Habeas Corpus (ECF No. 1) is summarily DISMISSED for failure to state a claim; 3. Petitioner’s First Amended Petition for Writ of Habeas Corpus (ECF No. 9) is 8 9 10 DISMISSED and, to the extent it is construed as a Motion for Leave to Amended the Petition, such motion is DENIED; and 11 12 4. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253. 13 IT IS SO ORDERED. 14 DATED: December 17, 2020 15 16 17 18 Troy L. Nunley United States District Judge 19 20 21 22 23 24 25 26 27 28 3

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