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Anthony Mark Ortiz v. Matthew Cate

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


November 1, 2012

ANTHONY MARK ORTIZ, PETITIONER,
v.
MATTHEW CATE, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Stephen V. Wilson United States District Judge

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the first amended petition, records on file, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected. The Court accepts the findings and recommendation of the Magistrate Judge except as modified below.

Petitioner filed three habeas petitions in California, each of which was an original proceeding. (Lodged Document ("LD") 10, 12, 14.) The last decision was a summary denial by the California Supreme Court (LD 15), which is an adjudication on the merits and entitled to deference. Harrington v. Richter, 131 S. Ct. 770, 785 (2011). Accordingly, Petitioner's objection that the Magistrate Judge did not "conduct any analysis" of the Superior Court's denial of Petitioner's habeas petition is overruled. (Objections at 2.) Petitioner has not shown that the California Supreme Court's decision was contrary to, or an unreasonable application of, clearly established federal law for the reasons stated in the Report and Recommendation. Petitioner's remaining objections are without merit.

Petitioner's request for an evidentiary hearing is denied because he has not shown that a hearing would enable him to prove factual allegations that, if true, would entitle him to federal habeas relief. Schriro v. Landrigan, 550 U.S. 465, 474, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007). In addition, all five grounds in the petition were adjudicated on the merits by the California Supreme Court. Under 28 U.S.C. § 2254(d)(1), a review of such cases "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011).

IT IS ORDERED that judgment be entered denying the petition and dismissing this action with prejudice.

20121101

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