1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHEN RUSSELL FEGAN, No. 1:23-cv-01520-KES-SKO (HC) 12 Petitioner, ORDER ADOPTING IN PART FINDINGS AND RECOMMENDATIONS, DISMISSING 13 PETITION AND FIRST AMENDED PETITION FOR WRIT OF HABEAS 14 v. CORPUS, DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY, AND 15 DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE 16 JANAN CAVAGNOLO, Acting Warden, Doc. 62 17 Respondent. 18

19 20 Petitioner Stephen Russell Fegan is a state prisoner proceeding pro se and in forma 21 pauperis in this habeas corpus action. On September 30, 2024, the Court adopted the assigned 22 magistrate judge’s findings and recommendations that recommended dismissing the second 23 amended petition without leave to amend. Doc. 54. Petitioner appealed, and the Ninth Circuit 24 granted a certificate of appealability “as to whether the magistrate judge exceeded her authority in 25 dismissing, without the consent of the parties, (1) the proposed habeas petition transferred by this 26 court in Case No. 22-722 to the district court, and (2) appellant’s first amended petition, with 27 leave to amend, after concluding that the petition contained claims that were impermissibly 28 successive.” Doc. 59. Respondent conceded that the assigned magistrate judge did not have that 1 authority, and the Ninth Circuit vacated the Court’s judgment and remanded to this Court “for 2 further proceedings consistent with Williams v. King,

(9th Cir. 2017).”

The 3 Court then referred this matter back to the assigned magistrate judge pursuant to 28 U.S.C. 4 § 636(b)(1)(B) and Local Rule 302 to “issue findings and recommendations as to: (1) whether the 5 original habeas petition in this matter should be dismissed, and (2) if so, whether the first 6 amended petition should also be dismissed.” Doc. 61. 7 On July 3, 2025, the assigned magistrate judge issued findings and recommendations to 8 dismiss the original petition and the first amended petition as successive. Doc. 62. Those 9 findings and recommendations were served upon all parties and contained notice that any 10 objections thereto were to be filed within twenty-one (21) days after service. No objections have 11 been filed, and the deadline to do so has expired. 12 In accordance with the provisions of

(b)(1), the Court has conducted a de 13 novo review of the case. Having carefully reviewed the entire file, the Court adopts in part the 14 findings and recommendations. 15 The original petition is dismissed. As the assigned magistrate judge noted in the screening 16 order of that petition, see Doc. 7, that petition failed to comply with Rule 2(c) of the Rules 17 Governing Section 2254 Cases as it largely takes the form of an application to file a successive 18 petition. See Doc. 2. An application to file a successive petition must include the proposed 19 section 2254 petition. See Ninth Cir. Rule 22-3(a)(2). Petitioner appended to his application to 20 file a successive petition only the odd-numbered pages of his proposed petition. See Doc. 2 at 9– 21 17. As such, grounds one and two of that proposed petition were omitted entirely, and necessary 22 context for grounds three and four were absent. See

Rule 2(c) requires that petitioner 23 “(1) [s]pecify all the grounds for relief available to the petitioner; [and] (2) [s]tate the facts 24 supporting each ground.” The inclusion of only the odd-numbered pages of petitioner’s proposed 25 petition therefore did not comply with Rule 2(c), and that petition should be dismissed on those 26 grounds. 27 The findings and recommendations correctly concluded that all claims in the first 28 amended petition, Doc. 15, should be dismissed as successive. See Doc. 62 at 4–5. To that 1 extent, the Court adopts the findings and recommendations.1 2 Having found that petitioner is not entitled to habeas relief, the Court now turns to 3 whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 4 has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is 5 allowed only in certain circumstances. Miller-El v. Cockrell,

, 335–336 (2003). If a 6 court denies a habeas petition on the merits, the court may issue a certificate of appealability only 7 “if jurists of reason could disagree with the district court’s resolution of [the petitioner’s] 8 constitutional claims or that jurists could conclude the issues presented are adequate to deserve 9 encouragement to proceed further.” Miller-El,

; Slack v. McDaniel,

, 10 484 (2000). While the petitioner is not required to prove the merits of his case, he must 11 demonstrate “something more than the absence of frivolity or the existence of mere good faith on 12 his . . . part.” Miller-El,

. 13 In the present case, the Court finds that reasonable jurists would not find the Court’s 14 determination that the original petition and first amended petition should be denied debatable or 15 wrong, or that petitioner is deserving of encouragement to proceed further. Petitioner has not 16 made the required substantial showing of the denial of a constitutional right. Therefore, the Court 17 declines to issue a certificate of appealability. 18 // 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26

27 1 To the extent petitioner’s second amended habeas petition (Doc. 23) could be construed to still be pending before the Court, dismissal of that petition is warranted for the reasons set forth in the 28 Court’s September 30, 2024, order (Doc. 54). 1 Accordingly, 2 1. The findings and recommendations issued on July 3, 2025, Doc. 62, are adopted in 3 part; 4 2. The petitions for writ of habeas corpus are dismissed; 5 3. The Clerk of Court is directed to enter judgment and close the case; and 6 4. The Court declines to issue a certificate of appealability. 4 8 g | SO ORDERED. _ 10 Dated: _ August 6, 2025 4h UNITED STATES DISTRICT JUDGE

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