UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
October 8, 2010
MAURICE LAMAR THOMPSON, PETITIONER,
DARRYL G. ADAMS, WARDEN, RESPONDENT.
The opinion of the court was delivered by: George H. King United States District Judge
ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE AND DENYING PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, and the Superseding Report and Recommendation of the United States Magistrate Judge. Objections to the Superseding Report and Recommendation have been filed herein, as well as petitioner's request for an evidentiary hearing.
With regard to petitioner's request for an evidentiary hearing, in habeas proceedings, "an evidentiary hearing is not required on issues that can be resolved by reference to the state court record." Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998); see also Earp v. Ornoski, 431 F.3d 1158, 1173 (9th Cir. 2005) (to be entitled to an evidentiary hearing, petitioner "must demonstrate by his evidence the potential of a colorable claim that, if proven true at the hearing, would show" that he is entitled to relief). "It is axiomatic that when issues can be resolved with reference to the state court record, an evidentiary hearing becomes nothing more than a futile exercise." Totten, 137 F.3d at 1176. Here, the Magistrate concluded that all of petitioner's claims could be resolved by reference to the state court record.
Having made a de novo determination of those portions of the Report and Recommendation to which objections have been made, the Court concurs with and adopts the findings, conclusions and recommendations of the Magistrate Judge. Consequently, as the Court has adopted the Magistrate's Superseding Report and Recommendation, the Court DENIES petitioner's request for an evidentiary hearing, as the issues raised in the Petition were able to be resolved by reference to the state court record.
IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice.
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