1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GILBERT EARL SMITH, No. 2:21-cv-2080-TLN-DMC 12 Petitioner, ORDER 13 v. 14 MATTHEW ATCHLEY, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding with retained counsel, brings this petition for a writ 18 of habeas corpus under

. The matter was referred to a United States Magistrate 19 Judge pursuant to Eastern District of California local rules. 20 On February 22, 2024, the Magistrate Judge filed findings and recommendations herein 21 which were served on Petitioner, and contained notice that Petitioner may file objections within 22 the time specified therein. (ECF No. 25.) Petitioner filed objections to the findings and 23 recommendations, which the Court considered. (ECF No. 32.) 24 The Court presumes that any findings of fact are correct. See Orand v. United States, 602

(9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 26 See Britt v. Simi Valley Unified School Dist.,

, 454 (9th Cir. 1983). Having reviewed 27 the file, the Court finds the findings and recommendations to be supported by the record and by 28 the magistrate judge’s analysis. 1 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has 2 | considered whether to issue a certificate of appealability. Before Petitioner can appeal this 3 | decision, a certificate of appealability must issue. See

(c); Fed. R. App. P. 22(b). 4 | Where the petition is denied on the merits, a certificate of appealability may issue under 28 5 | U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 6 | constitutional right.”

(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 acertificate 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,

(9th Cir. 13 2000) (quoting Slack v. McDaniel,

,

(2000)). For the reasons 14 | set forth in the Magistrate Judge’s findings and recommendations, the Court finds that issuance of 15 | acertificate of appealability is not warranted in this case. 16 Accordingly, IT IS HEREBY ORDERED as follows: 17 1. The findings and recommendations, filed on February 22, 2024 (ECF No. 25), are 18 ADOPTED IN FULL; 19 2. Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 1) is DENIED; 20 3. The Court DECLINES to issue a certificate of appealability; and 21 4. The Clerk of the Court is directed to close this case. 22 | Date: August 5, 2024 23 24 () jf 25 Mn Voskouy 26 Troy L. Nuhlep> ] 4 United States District Judge 28