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Roberto Carlos Cruz v. Anthony Hedgpeth

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


March 21, 2012

ROBERTO CARLOS CRUZ, PETITIONER,
v.
ANTHONY HEDGPETH, RESPONDENT.

The opinion of the court was delivered by: George H. WU United States District Judge

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE AS REVISED

Pursuant to 28 U.S.C. §636, the Court has reviewed the Petition for Writ of Habeas Corpus ("Petition"), the records and files herein, and the Amended Report and Recommendation of the United States Magistrate Judge ("Amended Report"). The Court has made a de novo determination of the Amended Report.

The Court makes the following changes to the Amended Report: P. 18, Line 5: the correct year is 2006; and p. 18, line 28: the correct citation is House v. Bell, 547 U.S. at 538.

IT IS ORDERED that: (1) the Court accepts the findings and recommendations of the Magistrate Judge with the changes noted above, and (2) the Court declines to issue a Certificate of Appealability ("COA").*fn1

Under 28 U.S.C. §2253(c)(2), a Certificate of Appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Here, the Court has adopted the Magistrate Judge's finding and conclusion that the Petition is time-barred. Thus, the Court's determination of whether a Certificate of Appealability should issue here is governed by the Supreme Court's decision in Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595 (2000), where the Supreme Court held that, "[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the 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." 529 U.S. at 484. As the Supreme Court further explained:


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