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Zimmerman v. Neuschmid

United States District Court, E.D. California

November 12, 2019

KENNETH ZIMMERMAN, Petitioner,
v.
ROBERT NEUSCHMID, Warden, Respondent.

          ORDER

          TROY L. NUNLEY UNITED STATES DISTRICT JUDGE

         Petitioner Kenneth Zimmerman (“Petitioner”), a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

         On September 17, 2019, the magistrate judge filed findings and recommendations herein which were served on Petitioner and which contained notice to Petitioner that any objections to the findings and recommendations were to be filed within fourteen days. (ECF No. 6.) On October 4, 2019, Petitioner filed his “Objections to Magistrate Judge's Findings and Recommendation.” (ECF No. 7.)

         This Court reviews de novo those portions of the proposed findings of fact to which objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As to any portion of the proposed findings of fact to which no objection has been made, the Court assumes its correctness and decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge's conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

         Having carefully reviewed the entire file under the applicable legal standards, the Court finds the Findings and Recommendations to be supported by the record and by the magistrate judge's analysis.

         Petitioner objects to the Findings and Recommendations on the basis that the grounds raised in the instant petition are different from those raised in Petitioner's prior petition. (ECF No. 7 at 1-2, citing Sanders v. United States, 373 U.S. 1, 16-17 (1963).) Petitioner's reliance on Sanders for this contention is unavailing.[1] The Findings and Recommendations state that if Petitioner is seeking leave to file a second or successive habeas application, he must once again obtain a certification from the Ninth Circuit authorizing the Court to consider any subsequent habeas petition. (ECF No. 6 at 2.) The Court agrees. Therefore, Petitioner's objections are overruled.

         Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has considered whether to issue a certificate of appealability. Before Petitioner can appeal this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Where the petition is denied on the merits, a certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the district court was correct in its procedural ruling'; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.'” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)). For the reasons set forth in the magistrate judge's Findings and Recommendations (ECF No. 6), the Court finds that issuance of a certificate of appealability is not warranted in this case.

         Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed September 17, 2019 (ECF No. 6), are adopted in full; and
2. The Petition (ECF No. 1) is DISMISSED pursuant to 28 U.S.C. § 2244(b)(3) as a second or successive habeas corpus application; and
3. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253.

         IT IS SO ORDERED.

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