(HC) Gazaway v. State of CA, No. 2:2023cv00699 - Document 42 (E.D. Cal. 2024)

Court Description: ORDER signed by Senior District Judge William B. Shubb on 8/29/2024 ADOPTING 28 The Findings and Recommendations in full; GRANTING 12 Motion to Dismiss. All other pending motions, 3 21 , 25 , and 27 , are DENIED as moot. The Court DECLINES to issue a certificate of appealability. The Clerk of the Court is directed to enter judgment and close this file. CASE CLOSED. (Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERRALD D. GAZAWAY, 12 Petitioner, 13 14 No. 2:23-CV-0699-WBS-DMC-P v. ORDER STATE OF CALIFORNIA, 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 May 14, 2024, the Magistrate Judge filed findings and recommendations herein 20 21 which were served on the parties, and which contained notice that the parties may file objections 22 within the time specified therein. Timely objections to the findings and recommendations have 23 been filed. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 25 this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, 26 the Court finds the findings and recommendations to be supported by the record and by proper 27 analysis. 28 /// 1 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 as follows: 17 1. 18 The findings and recommendations filed May 14, 2024, ECF No. 28, are adopted in full. 19 2. Respondent's motion to dismiss, ECF No. 12, is GRANTED. 20 3. All other pending motions, ECF Nos. 3, 21, 25, and 27, are DENIED as 22 4. The Court DECLINES to issue a certificate of appealability. 23 5. The Clerk of the Court is directed to enter judgment and close this file. 21 24 moot. Dated: August 29, 2024 25 26 27 28 2

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