Opinion
No. CR S-06-0258 KJM DAD
03-30-2012
UNITED STATES OF AMERICA, Respondent, v. PEGGY KAYE WITTS, Movant.
ORDER
Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B).
On December 6, 2011, the magistrate judge filed findings and recommendations that were served on all parties and contained notice that any objections to the findings and recommendations were to be filed within twenty-one days. Neither party has filed objections to the findings and recommendations.
If petitioner wishes to appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A certificate of appealability may issue under 28 U.S.C. § 2253 "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. 2253(c)(3). A certificate of appealability should be granted for any issue that petitioner can demonstrate is "'debatable among jurists of reason,'" could be resolved differently by a different court, or is "'adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In this case, petitioner has failed to make a substantial showing with respect to any of the claims presented.
Except for the requirement that appealable issues be specifically identified, the standard for a certificate of appealability is the same as the standard applied to issuance of a certificate of probable cause. Jennings, 290 F.3d at 1010.
The court presumes that any findings of fact are correct. 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 School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having carefully reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed December 6, 2011, are adopted in full.
2. The motion to dismiss (Docket No. 67) is denied.
3. Respondent shall file an answer to the motion brought under 28 U.S.C. § 2255 within thirty (30) days.
4. The motion to modify the initial custody order (Docket No. 70) is denied without prejudice, for lack of jurisdiction.
5. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253.
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UNITED STATES DISTRICT JUDGE
hm/witt0258.803.mtd