1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN MICHAEL LOPEZ, No. 1:23-cv-01368 JLT EPG (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF 14 KEVIN HIXTON, HABEAS CORPUS WITHOUT PREJUDICE, DIRECTING CLERK OF COURT TO CLOSE 15 Respondent. CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 16 (Docs. 7, 13) 17 18 Steven Michael Lopez, represented by counsel, is a state prisoner proceeding with a 19 petition for writ of habeas corpus brought pursuant to

. This matter was referred 20 to a United States Magistrate Judge pursuant to

(b)(1)(B) and Local Rule 302. 21 On February 2, 2024, the magistrate judge issued Findings and Recommendations 22 recommending that the petition for writ of habeas corpus be dismissed without prejudice based on 23 Younger v. Harris,

(1971). (Doc. 13.) On February 12, 2024, Petitioner filed timely 24 objections. (Doc. 14.) 25 According to

(b)(1)(C), this Court performed a de novo review of this 26 case. Having carefully reviewed the matter, the Court concludes the Findings and 27 Recommendations are supported by the record and proper analysis. Petitioner’s primary objection 28 is that Younger does not apply here because, though his state sentence was vacated and 1 resentencing remains pending, the instant habeas petition does not raise issues that will be 2 relevant to the resentencing. (See Doc. 14 at 3.) This argument is unconvincing considering the 3 reasoning set forth in Edelbacher v. Calderon,

(9th Cir. 1998). The Findings and 4 Recommendations correctly applied Edelbacher to find that Younger abstention is appropriate 5 here. (See Doc. 13 at 3.) 6 Having found that Petitioner is not entitled to habeas relief, the Court now turns to 7 whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 8 has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 9 allowed in certain circumstances. Miller-El v. Cockrell,

(2003); 28 U.S.C. 10 § 2253. Where, as here, the Court denies habeas relief on procedural grounds without reaching 11 the underlying constitutional claims, the Court should issue a certificate of appealability “if jurists 12 of reason would find it debatable whether the petition states a valid claim of the denial of a 13 constitutional right and that jurists of reason would find it debatable whether the district court was 14 correct in its procedural ruling.” Slack v. McDaniel,

(2000). “Where a plain 15 procedural bar is present and the district court is correct to invoke it to dispose of the case, a 16 reasonable jurist could not conclude either that the district court erred in dismissing the petition or 17 that the petitioner should be allowed to proceed further.”

18 In the present case, the Court finds that reasonable jurists would not find the Court’s 19 determination that the petition should be dismissed debatable or wrong, or that Petitioner should 20 be allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 21 Thus, the Court ORDERS: 22 1. The Findings and Recommendations issued on February 2, 2024 (Doc. 13) are 23 ADOPTED IN FULL. 24 2. Respondent’s motion to dismiss (Doc. 7) is GRANTED. 25 3. The petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE. 26 4. The Clerk of Court is directed to CLOSE THE CASE. 27 /// 28 /// 1 5. The Court declines to issue a certificate of appealability. 2 3 IT IS SO ORDERED. | Dated: _ April 17, 2024 Charis [Tourn TED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28