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COOPER v. KIRKLAND

United States District Court, S.D. California


December 9, 2005.

DeANGELO MATHEW COOPER, Petitioner,
v.
RICHARD J. KIRKLAND, Warden, Respondent.

The opinion of the court was delivered by: IRMA GONZALEZ, District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY [DOC NO. 16]
DeAngelo Mathew Cooper, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his February 11, 1999 conviction and subsequent sentence in San Diego County Superior Court Case No. SCD139243. The case was referred to Magistrate Judge Nita L. Stormes pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule HC.2(a).

On October 4, 2005, Magistrate Judge Stormes issued a report and recommendation recommending that the petition be denied on the merits. Magistrate Judge Stormes ordered that any objections be filed on or before October 31, 2005. No objections have been filed.

  The Court, having reviewed de novo Magistrate Judge Stormes' report and recommendation, finds it to be well-reasoned. The Court, therefore, adopts the report and recommendation in full. The petition for a writ of habeas corpus is DENIED.

  On September 26, 2005, prior to issuance of the report and recommendation, Petitioner filed a request for a certificate of appealability. A certificate of appealability is authorized "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a petitioner's claims have been denied on their merits, as here, a petitioner can meet the threshold "substantial showing of the denial of a constitutional right," by demonstrating that: (1) the issues are debatable among jurists of reason; or (2) that a court could resolve the issues in a different manner; or (3) that the questions are adequate to deserve encouragement to proceed further. Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000), citing Slack v. McDaniel, 529 U.S. 473 (2000). Upon review, the Court concludes that Petitioner has not made a "substantial showing of the denial of a constitutional right." Petitioner's claims plainly lack merit. Therefore, his request for a certificate of appealability [Doc. No. 16] is also DENIED.

  IT IS SO ORDERED.

20051209

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