The opinion of the court was delivered by: Hon. S. James Otero United States District Judge
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation, Petitioner's Application for Certificate of Appealability, and the remaining record, and has made a de novo determination.
The Objections generally lack merit for the reasons set forth in the Report and Recommendation. There is one issue, however, that warrants brief amplification here.
Petitioner claims that the Magistrate Judge erred in determining that evidence of Petitioner's alleged gang affiliation was pertinent to Jeremy Koehler's credibility as a witness. Preliminarily, Petitioner's claim that the state trial court improperly admitted evidence of the purported gang affiliation is not cognizable on federal habeas review. Even assuming that it is, however, such evidence was relevant because it offered a reasonable explanation for Jeremy's hesitancy to testify against Petitioner. Importantly, moreover, the state trial court specifically and repeatedly admonished the jury that Petitioner was not, in fact, a known gang member, and that such evidence could be used only to demonstrate Jeremy's state of mind. The trial court thus did not err by admitting limited evidence of Petitioner's alleged gang affiliation.
Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and accepted;
2. Judgment be entered denying the Petition and dismissing this action with prejudice; and
3. The Clerk serve copies of this Order on the parties.
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": (1) "the petition states a valid claim of the denial of a constitutional right"; and (2) "the district court was correct in its procedural ruling." See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, the Court declines to issue a certificate of appealability.
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