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Alejandro Torres v. Leland Mcewen

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


July 7, 2011

ALEJANDRO TORRES, PETITIONER,
v.
LELAND MCEWEN, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Hon. Ronald S.W. Lew Senior 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 Objections to the Report and Recommendation, and the remaining record, and has made a de novo determination.

Petitioner's Objections to the Report and Recommendation regurgitate the arguments made in the Petition and Reply, and lack merit for the reasons set forth in the Report and Recommendation.

Petitioner also objects to the Magistrate Judge's denial of his evidentiary hearing and discovery motions, which were filed on May 26, 2010, and denied on June 9, 2010. [See Dkt. Nos. 17-19.] Petitioner's objections to such motions are untimely. See Fed. R. Civ. P. 72(a) ("A party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to.") In any event, the Court finds that the Magistrate Judge's denial of those motions was not clearly erroneous or contrary to law for the reasons stated in the Magistrate Judge's June 9, 2010 Order. See id.

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 with 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 made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of appealability.

20110707

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