The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; [Doc. No. 20] OVERRULING PETITIONER'S OBJECTIONS; [Doc. No. 34] DENYING PETITION FOR WRIT OF HABEAS CORPUS [Doc. No. 1]
Petitioner Wydell Dupree Jones, a state prisoner proceeding pro se and in forma pauperis, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in San Diego County Superior Court, case number SCD202155. [Doc. No. 1.] Respondent filed an answer on April 26, 2010 [Doc. No. 10], and Petitioner filed a traverse on July 19, 2010 [Doc. No. 19]. The matter was referred to United States Magistrate Judge Bernard G. Skomal for preparation of a Report and Recommendation under 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). Judge Skomal issued his Report on May 31, 2011. [Doc. No. 20.]
Judge Skomal issued a well-reasoned and thorough Report, forty-six pages in length, recommending the petition be denied in its entirety. Petitioner filed lengthy objections with supporting exhibits, challenging the findings and conclusions of law set forth in the Report and Recommendation. [Doc. No. 34, 36.] Respondent did not file an objection to the Report, nor a response to Petitioner's objections.
Under 28 U.S.C. § 636(b)(1), in reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Here, Petitioner objects to the entirety of the Report. [Doc. No. 34.] Petitioner challenges each of the Magistrate Judge's conclusions, arguing primarily that, "petitioner's actual claims and contentions have been and are being ignored or misrepresented by respondent, and now so by the magistrate court in its denial recommendation." [See, e.g., id. at p.3, 18.] The Court has conducted a de novo review of the entire record and considered the merits of each of Petitioner's objections. With respect to Petitioner's objections to the findings of fact detailed in the Report, the Court overrules the objections, as they are amply supported by the record. Contrary to Petitioner's assertion, Judge Skomal's Report accurately reflects the pertinent facts and proceedings resulting in Petitioner's conviction. Petitioner's objections to the conclusions of law are similarly without merit, and are therefore, overruled. Judge Skomal identified the correct legal standards, applied each standard correctly, considered relevant case law, and reached sound conclusions that this Court has no reason to reject.
Having reviewed the Report and Recommendation and the files and records herein, the Court ADOPTS the Report and Recommendation in its entirety. Accordingly, the Court DENIES Petitioner's petition for writ of habeas corpus.
CERTIFICATE OF APPEALABILITY
"The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11 foll. 28 U.S.C. § 2254. A petitioner may not seek an appeal of a claim arising out of a state court detention unless the petitioner first obtains a certificate of appealability from a district judge or circuit judge under 28 U.S.C. § 2253. Fed. R. App. Proc. 22(b). Under 28 U.S.C. § 2253(c), a certificate of appealability will issue only if the petitioner makes a substantial showing of the denial of a constitutional right.
For the reasons set forth in the Report and Recommendation, Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action.
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