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Keith Lamont Veals v. Domingo Uribe

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


March 30, 2012

KEITH LAMONT VEALS, PETITIONER,
v.
DOMINGO URIBE, JR., WARDEN, RESPONDENT.

The opinion of the court was delivered by: Hon. R. Gary Klausner 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 does not contest that his Petition is barred by AEDPA's one-year statute of limitation; instead, he argues the merits of his Petition. (See Objs. at 2.) Petitioner also claims that a Certificate of Appealability ("COA") should issue because the "the Court must look solely to whether, for each claim, the Petitioner has facially alleged the denial of a constitutional right." (Id. at 4 (internal quotation marks omitted) (citing Lambright v. Stewart, 220 F.3d 1022, 1026 (9th Cir. 2000)).

However, Petitioner is mistaken. Under Lambright, the Ninth Circuit explained that where a "district court has dismissed a claim on a procedural ground without providing the petitioner an opportunity to develop its factual or legal basis through full briefing and an evidentiary hearing[,]" the issue of whether to grant a COA will depend on whether (1) "the petitioner has facially alleged the denial of a constitutional right" and (2) "the district court's procedural ruling is debatable[.]" Lambright, 220 F.3d at 1026-27 (emphasis added). Here, for the reasons stated in the Report and Recommendation, 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 COA is denied. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Additionally, 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); Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

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.

20120330

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