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Kevin Charles Cole v. Matthew Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 14, 2010

KEVIN CHARLES COLE,
PEITIONER,
v.
MATTHEW CATE, SECRETARY, ET AL.,
RESPONDENTS.

The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) ADOPTING THE AND RECOMMENDATION; (2) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS; and APPEALABILITY MAGISTRATE JUDGE'S REPORT (3) DENYING CERTIFICATE OF [Doc. Nos. 1, 35]

Petitioner Kevin Charles Cole ("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 convictions. (Doc. No. 1.) Respondent Matthew Cate filed an Answer and Memorandum of Points and Authorities, and Petitioner filed a traverse.

On October 21, 2010, Magistrate Judge Louisa S. Porter issued a Report and Recommendations recommending the Court deny the petition for writ of habeas corpus, and requiring any objections to be filed no later than November 16, 2010. (Doc. No. 35.) To date, Petitioner has not filed objections.

The Court HEREBY ADOPTS Magistrate Judge Porter'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.

20101214

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