Opinion
Case No. 1:13-cv-00626-AWI-SKO-HC
2013-09-27
CLARENCE LEON DEWS, Petitioner, v. MARTIN BITER, Warden of Kern Valley State Prison, Respondent.
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS (DOC. 25)
ORDER DENYING PETITIONER'S MOTION
FOR RECONSIDERATION (DOC. 24)
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.
On August 27, 2013, the Magistrate Judge filed findings and recommendations that Petitioner's motion for reconsideration of the Court's dismissal of the petition as a successive petition and decision not to issue a certificate of appealability. The findings and recommendations were served on the parties on the same date, and they informed the parties that objections could be filed within thirty (30) days of service, and any reply could be filed no later than fourteen (14) days after service of any objections.
Petitioner filed objections on September 17, 2013. No reply will be filed because Petitioner is the only party who has appeared in the action.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case. The undersigned has carefully reviewed the entire file, including Petitioner's objections, and has considered the objections. The undersigned has determined there is no need to modify the findings and recommendations based on the points raised in the objections. The Court finds that the report and recommendations are supported by the record and proper analysis.
Further, unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the Court of Appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should issue if the Petitioner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right or that jurists of reason would find it debatable whether the district court was correct in any procedural ruling. Slack v. McDaniel, 529 U.S. at 483-84.
In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their merits, and determines whether the resolution was wrong or debatable among jurists of reason. Id. It is necessary for an applicant to show more than an absence of frivolity or the existence of mere good faith; however, it is not necessary for an applicant to show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. at 338.
A district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a different manner. Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, the Court will decline to issue a certificate of appealability with respect to the Court's ruling on Petitioner's motion for reconsideration.
Accordingly, it is ORDERED that:
1. The findings and recommendations filed on August 27, 2013, are ADOPTED in full; and
2. The Petitioner's motion for reconsideration of the dismissal of the petition and decision not to issue a certificate of appealability is DENIED; and
3. The Court DECLINES to issue a certificate of appealability. IT IS SO ORDERED.
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SENIOR DISTRICT JUDGE