United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATION, DENYING
PETITIONER'S REQUEST FOR STAY, DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE
CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
(ECF NOS. 10, 11)
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. On
November 15, 2019,  the Magistrate Judge issued Findings and
Recommendation that recommended dismissing the petition as an
unauthorized successive petition and for failure to state a
cognizable federal habeas claim. (ECF No. 10).
response to the Findings and Recommendation, Petitioner filed
a request for a stay of the instant proceedings so that
Petitioner “can obtain leave from the Ninth Circuit
Court of Appeal due to this case being a successive
petition.” (ECF No. 11 at 1). Attached to the request is a
copy of Petitioner's application for leave to file a
second or successive habeas petition that is addressed to the
Ninth Circuit. (Id. at 2-3).
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), this Court has conducted a de novo review of
the case. Having carefully reviewed the entire file, the
Court concludes that the Findings and Recommendation is
supported by the record and proper analysis. Further, the
Court finds that a stay is not warranted. In the event that
the Ninth Circuit grants Petitioner leave to file a
successive § 2254 petition, Petitioner can return to the
district court and file his habeas petition.
prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his
petition, and an appeal is only allowed in certain
circumstances. Miller-El v. Cockrell, 537 U.S. 322,
335-36 (2003). The controlling statute in determining whether
to issue a certificate of appealability is 28 U.S.C. §
2253, which provides as follows:
(a) In a habeas corpus proceeding or a proceeding under
section 2255 before a district judge, the final order shall
be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to
another district or place for commitment or trial a person
charged with a criminal offense against the United States, or
to test the validity of such person's detention pending
(c) (1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to
the court of appeals from-
(A) the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by a
State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph
(1) only if the applicant has made a substantial showing of
the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1)
shall indicate which specific issue or issues satisfy the
showing required by paragraph (2).
28 U.S.C. § 2253.
court denies habeas relief on procedural grounds without
reaching the underlying constitutional claims, the court
should issue a certificate of appealability “if jurists
of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
“Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the
case, a reasonable ...