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Heriberto Contreras v. On Habeas Corpus

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 19, 2012

HERIBERTO CONTRERAS,
PETITIONER,
v.
ON HABEAS CORPUS, RESPONDENT.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATION, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY [Doc. 5]

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On November 29, 2011, the Magistrate Judge issued a Findings and Recommendation that the petition be DISMISSED. This Findings and Recommendation was served on all parties with notice that any objections were to be filed within thirty (30) days of the date of service of the order. Petitioner filed objections on January 3, 2012.

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, including Petitioner's objections, the Court concludes that the Magistrate Judge's Findings and Recommendation is supported by the record and proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendation issued November 29, 2011, is ADOPTED IN FULL;

2. The Petition for Writ of Habeas Corpus is DISMISSED without prejudice;

3. All pending motions are DISMISSED as moot; and

4. The Court DECLINES to issue a Certificate of Appealability. 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) In order to obtain a COA, petitioner must show: (1) that jurists of reason would find it debatable whether the petition stated a valid claim of a denial of a constitutional right; and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. at 484. In the present case, jurists of reason would not find debatable whether the petition was properly dismissed without prejudice. Petitioner has not made the required substantial showing of the denial of a constitutional right.

IT IS SO ORDERED.

20120319

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