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Robert Charles Evans v. Jerry Gutierrez

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 4, 2011

ROBERT CHARLES EVANS, PETITIONER,
v.
JERRY GUTIERREZ, RESPONDENT.

The opinion of the court was delivered by: Hon. Jacqueline H. Nguyen United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's "Respon[s]e to Order to Show Cause Why Petition Should Not Be Dismiss[ed] Without Prejudice for Failure to Exhaust State Remedies" ("Objections"), and the remaining record, and has made a de novo determination.

The Objections generally repeat arguments previously made by Petitioner and lack merit for the reasons set forth in the Report and Recommendation. The Court has already explained to Petitioner that it cannot stay and abey a habeas petition that contains only unexhausted claims. (See R&R at 3.) Petitioner should diligently exhaust his state court remedies or file a federal petition that presents exhausted claims.

Accordingly, IT IS ORDERED THAT: (1) the Report and Recommendation is approved and adopted; (2) Judgment be entered denying the Petition and dismissing this action without prejudice; and (3) the Clerk serve copies of this Order and the Judgment on the parties.

Additionally, for the reasons stated in the Report and Recommendation, the Court finds that Petitioner has not shown that jurists of reason would find it debatable whether the Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that when a court dismisses a petition on procedural grounds, a COA should issue only when "a prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.") (emphasis added). Thus, the Court declines to issue a certificate of appealability.

20110104

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