United States District Court, E.D. California
L. NUNLEY UNITED STATES DISTRICT JUDGE
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.
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.)
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).
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
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. 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.
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.
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.