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Flacco v. Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 13, 2010

PAUL RICHARD FLACCO, PETITIONER,
v.
MATTHEW CATE, SECRETARY OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT.

The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER: ADOPTING REPORT AND RECOMMENDATION; [Doc. No. 23] OVERRULING PETITIONER'S OBJECTIONS; [Doc. No. 25] DENYING PETITION FOR WRIT OF HABEAS CORPUS [Doc. No. 1]

Petitioner Paul Richard Flacco, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. No. 1] challenging his state court convictions for assault and battery.*fn1 Petitioner also challenges the sufficiency of the evidence in support of the great bodily injury enhancement that resulted in three years of Petitioner's six year sentence. Respondent filed an answer to the petition [Doc. No. 18], and Petitioner filed a traverse [Doc. No. 20]. Subsequent to the transfer from the Central District of California, the matter was referred to United States Magistrate Nita L. Stormes for preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3.

Judge Stormes issued a well-reasoned and thorough Report recommending the petition be denied in its entirety. Petitioner timely filed objections [Doc. No. 25], challenging the findings and conclusions of law set forth in the Report and Recommendation. Respondent did not file an objection to the Report, or a response to Petitioner's objections.

Under 28 U.S.C. § 636(b)(1), in reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." In the instant case, Petitioner objects to two conclusions contained in the Report: (1) that Petitioner voluntarily waived his right to a jury trial; and (2) that there is sufficient evidence to support the great bodily injury enhancement. The Court has considered the merits of Petitioner's objections, and overrules them, as the findings and conclusions are amply supported by the record. Judge Stormes identified the correct legal standards, applied each standard correctly, considered relevant case law, and reached sound conclusions that this Court has no reason to reject.

Having reviewed the Report and Recommendation and the files and records herein, the Court ADOPTS the Report and Recommendation in its entirety. Accordingly, the Court DENIES the petition and a writ of habeas corpus shall not issue in this case.

CERTIFICATE OF APPEALABILITY

"The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11 foll. 28 U.S.C. § 2254. A petitioner may not seek an appeal of a claim arising out of a state court detention unless the petitioner first obtains a certificate of appealability from a district judge or a circuit judge under 28 U.S.C. § 2253. Fed. R. App. Proc. 22(b). Under 28 U.S.C. § 2253(c)(1), a certificate of appealability will issue only if the petitioner makes a substantial showing of the denial of a constitutional right.

For the reasons set forth in the Report and Recommendation, Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action.

IT IS SO ORDERED.


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