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Paul Samuel Johnson v. Gary Swarthout

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 6, 2013

PAUL SAMUEL JOHNSON, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed an application to pursuant to 28 U.S.C. § 2254.

On January 10, 2013, petitioner was ordered to show cause, within twenty-one days, why respondent's November 16, 2012 motion to dismiss should not be granted. At that time, petitioner was warned that failure to file an opposition would result in a recommendation that this action be dismissed. The twenty-one day period has now expired, and petitioner has not shown cause or otherwise responded to the court's order. In addition, the court has reviewed the motion to dismiss based on lack of federal habeas corpus jurisdiction because petitioner is no longer in custody, and because the petition is procedurally barred. The court finds that on the face of it, the motion has merit. Petitioner's due process claims regarding his disciplinary proceeding are rendered moot by his release from prison, and the petition appears to be procedurally barred based on documentation submitted by respondent. See Dkt. no. 21-2.

Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate of appealability may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings and recommendations, a substantial showing of the denial of a constitutional right has not been made in this case.

Accordingly, IT IS HEREBY RECOMMENDED that: 1. Respondent's motion to dismiss, filed November 16, 2012 (docket # 27), be granted; and

2. The District Court decline to issue a certificate of appealability.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20130306

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