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Robert Lopez v. K. Harrington

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 22, 2013

ROBERT LOPEZ,
PETITIONER,
v.
K. HARRINGTON, WARDEN,
RESPONDENTS.

The opinion of the court was delivered by: U.S. District Judge Hon. Anthony J. Battaglia

ORDER ADOPTING REPORT AND RECOMMENDATION; DENYING PETITION FOR HABEAS CORPUS; AND DENYING REQUEST FOR CDCR, and EVIDENTIARY HEARING KAMALA HARRIS, Attorney General of the State of California,

Pending before the Court is Magistrate Judge Bernard G. Skomal's Report and Recommendation ("R&R") recommending that the Court: (1) deny Lopez's Petition for Writ of Habeas Corpus, and (2) deny Lopez's request for an evidentiary hearing. (Doc. No. 21.) Neither party filed an objection to the R&R.

Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district judge's duties in connection with a magistrate judge's report and recommendation. The district judge must "make a de determination of those portions of the report to which objection is made," and "may accept, reject, or modify, in whole or in part, the finding or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely objection(s), the Court "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72(b), Advisory Committee Notes (1983); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

Neither party has timely filed objections to Magistrate Judge Skomal's R&R. Having reviewed the R&R, the Court finds that Magistrate Judge Skomal's analysis is thorough, well reasoned, and contains no clear error. Accordingly, the Court hereby: (1) ADOPTS Magistrate Judge Skomal's Report and Recommendation in its entirety; (2) DENIES Lopez's Petition for Writ of Habeas Corpus; and (3) DENIES Lopez's request for an evidentiary hearing.Accordingly, the Court directs that judgment be entered DENYING the Petition for Writ of Habeas Corpus.

When a district court enters a final order adverse to the applicant in a habeas proceeding, it must either issue or deny a certificate of appealability, which is required to appeal a final order in a habeas proceeding. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability is appropriate only where the petitioner makes "a substantial showing of the denial of a constitutional right." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Under this standard, the petitioner must demonstrate that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. 28 U.S.C. § 2253; Slack v. McDaniel, 529 U.S. 473, 474 (2000). Here, the Court finds that reasonable jurists could not debate the Court's conclusion to deny the petition and, therefore, DENIES the certificate of appealability.

IT IS SO ORDERED.

20130122

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