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Gehrke v. Sullivan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 4, 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.)

On February 1, 2008, having received no objections from either party, this Court issued an order adopting the Report in its entirety and denying the petition for writ of habeas corpus.

On February 13, 2008, the Court learned that Petitioner had sent the Court a "Petition for issuance of Certificate of Probable Cause" and a "Notice of Appeal" before the due date for objections but that the Clerk's office had failed to docket or forward the documents to chambers. Construing these documents as an ineffectual attempt to object to the magistrate judge's Report, this Court vacated its February 1, 2008 order and instructed the Petitioner to file written objections to the Magistrate Judge's November 20, 2007 Report and Recommendations. The Court gave Petitioner until March 10, 2008 to file his objections and serve a copy on Respondent. (Doc. No. 23.)

As of the date of this Order, the Court has received no filing or request for extension of time from Petitioner.

Upon a review of the record and the reasons set forth in the magistrate judge's Report, the Court ADOPTS the Report in its entirety, and DENIES the petition for writ of habeas corpus.

IT IS SO ORDERED.

20080404

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