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Torres v. Adams

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 26, 2010

ARTHUR G. TORRES, PETITIONER,
v.
DERYL G. ADAMS, 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 RECOMMENDATION [Doc. No. 9]; (2) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS [Doc. No. 1]; and (3) DENYING CERTIFICATE OF APPEALABILITY.

Petitioner Arthur G. Torres ("Petitioner"), a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his San Diego County Superior Court conviction. (Doc. No. 1.) Respondent Deryl G. Adams filed an Answer and Memorandum of Points and Authorities. Petitioner did not file a traverse.

On July 15, 2010, Magistrate Judge William V. Gallo issued a Report and Recommendation recommending the Court deny the petition for writ of habeas corpus, and requiring any objections to be filed no later than August 16, 2010. (Doc. No. 9.) To date, Petitioner has not filed objections.

The Court HEREBY ADOPTS Magistrate Judge Gallo's well-reasoned Report and Recommendation in its entirety, and DENIES the petition for writ of habeas corpus. The Clerk of the Court shall close the case.

In addition, the Court sua sponte DENIES a certificate of appealability. A petitioner complaining of detention arising from state court proceedings must obtain a certificate of appealability to file an appeal of the final order in a federal habeas proceeding. 28 U.S.C. § 2253(c)(1)(A) (2007). The district court may issue a certificate of appealability if the petitioner "has made a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). To make a "substantial showing," the petitioner must "demonstrat[e] that 'reasonable jurists would find the district court's assessment of the constitutional claims debatable[.]'" Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, Petitioner has not made a "substantial showing" as to any of the claims raised by his petition, and therefore the Court declines to issue a certificate of appealability.

IT IS SO ORDERED.

20100826

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