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Gehrke v. Sullivan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 1, 2008

JESSE LYLE GEHRKE PETITIONER,
v.
R. SULLIVAN, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER (1) ADOPTING THE MAGISTRATE JUDGE'S REPORT and (2) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (Doc. 9, 18)

On July 30, 2007, petitioner Jesse Lyle Gehrke, a state prisoner proceeding pro se, filed an Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his San Diego Superior Court conviction for assault with a deadly weapon and assault by a life prisoner. (Doc. No. 9.) Petitioner advances two claims: (1) the trial court denied his right to due process by requiring him to be shackled during trial; (2) the trial court denied his right to due process by instructing the jury that the could be liable for inflicting injury if he participated in a group beating of the victim.

This matter was referred to United States Magistrate Judge Leo S. Papas pursuant to 28 U.S.C. § 636(b)(1)(B). On November 20, 2007, Magistrate Judge Papas issued a Report and Recommendation recommending the Court deny the petition for writ of habeas corpus in its entirety because the California Court of Appeal's decision in petitioner's case was not contrary to nor an unreasonable application of federal law. (Doc. No. 18.) Neither party has filed objections to the Report, which were due December 20, 2007.

Accordingly, the Court ADOPTS the Report in its entirety, and DENIES the petition for writ of habeas corpus.

IT IS SO ORDERED.

20080201

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