(HC) Pilman v. Fisher, No. 2:2020cv01771 - Document 17 (E.D. Cal. 2021)

Court Description: ORDER signed by Senior Judge William B. Shubb on 4/27/2021 Adopting in full the 15 findings and recommendations filed 3/12/2021; GRANTING Respondent's 12 motion to dismiss ; DECLINING to issue a certificate of appealability; and DIRECTING the Clerk to enter judgment and close this file. CASE CLOSED (Becknal, R)
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(HC) Pilman v. Fisher Doc. 17 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GERALD PILMAN, 12 13 14 No. 2:20-CV-1771-WBS-DMC-P Petitioner, v. ORDER R. FISHER, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 17 18 habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge pursuant to Eastern District of California local rules. On March 12, 2021, the Magistrate Judge filed findings and recommendations 20 21 herein which were served on the parties and which contained notice that the parties may file 22 objections within the time specified therein. The court construes Petitioner’s untimely opposition 23 to Respondent’s motion to dismiss, filed on March 29, 2021, as Petitioner’s objections to the 24 March 12, 2021, findings and recommendations. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 25 26 this court has conducted a de novo review of this case. Having carefully reviewed the entire file, 27 the court finds the findings and recommendations to be supported by the record and by proper 28 analysis. 1 Dockets.Justia.com 1 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the 2 court has considered whether to issue a certificate of appealability. Before Petitioner can appeal 3 this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 4 22(b). Where the petition is denied on the merits, a certificate of appealability may issue under 5 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 6 constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 7 appealability indicating which issues satisfy the required showing or must state the reasons why 8 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 9 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 10 jurists of reason would find it debatable whether the district court was correct in its procedural 11 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 12 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 13 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)). For the reasons 14 set forth in the Magistrate Judge’s findings and recommendations, the court finds that issuance of 15 a certificate of appealability is not warranted in this case. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The findings and recommendations filed March 12, 2021, are ADOPTED 19 2. Respondent’s motion to dismiss, ECF No. 12, is GRANTED; 20 3. The Court DECLINES to issue a certificate of appealability; and 21 4. The Clerk of the Court is DIRECTED to enter judgment and close this 18 22 in full; file. 23 24 Dated: April 27, 2021 25 26 27 28 2