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Tate v. Clark

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 16, 2008

VAN TATE, PETITIONER,
v.
KEN CLARK, RESPONDENT.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER VACATING ORDER DENYING CERTIFICATE OF APPEALABILITY ISSUED AUGUST 12, 2008, ADOPTING FINDINGS AND RECOMMENDATION, DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

[Doc. 21]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On July 24, 2008, the Magistrate Judge issued Findings and Recommendation that the Petition for Writ of Habeas Corpus be DENIED. This Findings and Recommendation was served on all parties and contained notice that any objections were to be filed within thirty (30) days of the date of service of the order.

On August 1, 2008, Petitioner filed timely objections to the Findings and Recommendation and a notice of appeal. (Court Docs. 22, 23.) The notice of appeal was filed prematurely as the Court had not yet issued an order addressing the Findings and Recommendation. However, on August 12, 2008, the Court inadvertently issued an order denying Petitioner's request for a certificate of appealability, which shall be vacated. (Court Doc. 24.)

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, including Petitioner's objections, the Court concludes that the Magistrate Judge's Findings and Recommendation is supported by the record and proper analysis. Petitioner's objections present no grounds for questioning the Magistrate Judge's analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The Court's August 12, 2008, order denying Petitioner's request for a certificate of appealability is VACATED (Court Doc. 24);

2. The Findings and Recommendation issued July 24, 2008, is ADOPTED IN FULL;

3. The Petition for Writ of Habeas Corpus is DENIED;

4. The Clerk of the Court is DIRECTED to enter judgment in favor of Respondent; and,

5. The court declines to issue a Certificate of Appealability. 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (a COA should be granted where the applicant has made "a substantial showing of the denial of a constitutional right," i.e., when "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong"; Hoffman v. Arave, 455 F.3d 926, 943 (9th Cir. 2006) (same). In the present case, the Court finds that reasonable jurists would not find it debatable that the state courts' decision denying Petitioner's petition for writ of habeas corpus were not "objectively unreasonable."

IT IS SO ORDERED.

20080916

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