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Alex Hernandez v. Greg Lewis

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


March 13, 2012

ALEX HERNANDEZ, PETITIONER,
v.
GREG LEWIS, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Hon. Percy Anderson United States District Judge

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records herein, the Report and Recommendation of the United States Magistrate Judge, and Petitioner's Objections to the Report and Recommendation, and has made a de novo determination. The Court accepts the Magistrate Judge's Report and Recommendation.

In his Objections, Petitioner essentially restates the arguments made in the Petition. Those arguments lack merit for the reasons stated in the Report and Recommendation.

Petitioner's request is denied as an evidentiary hearing is not required in this case. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011)(AEDPA "requires an examination of the state court-decision at the time it was made. It follows that the record under review is limited to the record in existence at the same time i.e., the record before the state court."); Schriro v. Landrigan, 550 U.S. 465, 474 (2007) ("[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.").

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. As a result, a Certificate of Appealability ("COA") is denied. 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).

Accordingly, having made a de novo determination of those portions of the Report and Recommendation to which objection was made, IT IS ORDERED THAT:

1. Petitioner's request for an evidentiary hearing is denied.

2. Judgment shall be entered dismissing the action with prejudice.

3. The Clerk shall serve copies of this Order and the Judgment herein on the parties.

4. A Certificate of Appealability is denied.

20120313

© 1992-2012 VersusLaw Inc.



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