Movant, a federal prisoner proceeding pro se, brings this motion to correct or set aside a criminal judgment pursuant to 28 U.S.C. § 2255. The matter was referred to a United States Magistrate Judge pursuant to Eastern District of California local rules.
On October 31, 2014, the Magistrate Judge filed findings and recommendations herein which were served on the parties and which contained notice that the parties may file objections within a specified time. No objections to the findings and recommendations have been filed.
The court has reviewed the file and finds the findings and recommendations to be supported by the record and by the Magistrate Judge's analysis.
Pursuant to Rule 11(a) of the Federal Rules Governing Section 2255 Cases, the court has considered whether to issue a certificate of appealability. Before movant 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 motion is denied on the merits, 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). 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 motion 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, 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 October 31, 2014, are adopted in full;
2. Respondent's unopposed motion to dismiss (Doc. 124) is granted; and
3. The court declines to issue a certificate of appealability. DATED: March 20, 2015
/s/ John A. Mendez
UNITED STATES DISTRICT COURT JUDGE