1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT HAVEN, No. 2:21-cv-00475-KJM-DMC-P 12 Petitioner,

13 v. ORDER 14 DANIEL CUEVA, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus under

. The matter was referred to a United States Magistrate 19 Judge as provided by Eastern District of California local rules. 20 On June 15, 2023, the Magistrate Judge filed findings and recommendations, 21 which were served on the parties and which contained notice that the parties may file objections 22 within the time specified therein. No objections to the findings and recommendations have been 23 filed. 24 The court presumes that any findings of fact are correct. See Orand v. United 25 States,

(9th Cir. 1979). The magistrate judge’s conclusions of law are 26 reviewed de novo. See Robbins v. Carey,

(9th Cir. 2007) (“[D]eterminations 27 of law by the magistrate judge are reviewed de novo by both the district court and [the appellate] 28 court . . . .”). 1 The court adopts the Magistrate Judge’s recommendation to dismiss the petition as 2 a whole because it is a “mixed” petition and because petitioner has not requested a stay and 3 abeyance. See Pliler v. Ford,

(2004); Rose v. Lundy,

, 510 4 (1982). The court cannot conclude a stay and abeyance would be appropriate in this case. See 5 Rhines v. Weber,

, 277–78 (2005) (discussing appropriate circumstances for stay and 6 abeyance). The court need not and does not reach the state’s independent argument for dismissal 7 of petitioner’s claims about unlawful searches and seizures. See Mot. Dismiss at 3, ECF No. 15. 8 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the 9 court has considered whether to issue a certificate of appealability. Before petitioner can appeal 10 this decision, a certificate of appealability must issue. See

(c); Fed. R. App. P. 11 22(b). Where the petition is denied on the merits, a certificate of appealability may issue under 12

“only if the applicant has made a substantial showing of the denial of a 13 constitutional right.”

(c)(2). The court must either issue a certificate of 14 appealability indicating which issues satisfy the required showing or must state the reasons why 15 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 16 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 17 jurists of reason would find it debatable whether the district court was correct in its procedural 18 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 19 claim of the denial of a constitutional right.’” Morris v. Woodford,

(9th Cir. 20 2000) (quoting Slack v. McDaniel,

,

(2000)). For the reasons 21 set forth in the Magistrate Judge’s findings and recommendations, the court finds that issuance of 22 a certificate of appealability is not warranted in this case. 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. The findings and recommendations filed June 15, 2023, are adopted in part 25 as described above; 26 2. Respondent’s unopposed motion to dismiss, ECF No. 15, is granted; 27 ///// 28 ///// 1 3. The Court declines to issue a certificate of appealability; and 2 4. The Clerk of the Court is directed to enter judgment and close this file. 3 | DATED: August 21, 2023.

‘ CHIEF ED STATES DISTRICT JUDGE 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28