UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
February 5, 2013
RALPH M. DIAZ, WARDEN CSP PRISON, CORCORAN, CALIFORNIA, RESPONDENT.
The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
[DOC. 7], (2) DENYING
PETITION AND (3) DENYING , SATF- CERTIFICATE OF
APPEALABILITY [Doc. 9]
On May 23, 2012, Petitioner Marco Benitez, a state prisoner proceeding with counsel, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (the "Petition"), challenging his conviction for two counts of robbery, two counts of carjacking, and the unlawful taking of a vehicle, and a finding of a gang enhancement. Petitioner received a sentence of twenty-eight years to life. On August 10, 2012, Respondent filed a Response to the Petition, arguing thatthe Petition should be denied.
On October 30, 2012, United States Magistrate Judge William V. Gallo issued a Report and Recommendation (the "Report") recommending that the Petition be denied with prejudice. The Report also ordered the parties to file written objections by December 3, 2012, and any reply to the objections by December 17, 2012.
On November 14, 2012, Petitioner filed an Objection to the Report's recommendation to deny the Petition. Petitioner disagrees with the Report's conclusion that no reasonable probability exists that his trial counsel's failure to request a specific jury instruction caused undue prejudice. Petitioner also argues that the state's case was weak and contends that the Report should have considered this when determining the likelihood of prejudice.
Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), the Court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings 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). Having conducted a de novo review of the Report, the Court concludes that Judge Gallo issued an accurate Report and well-reasoned recommendation that the instant Petition be denied with prejudice. Accordingly, IT IS HEREBY ORDERED THAT:
1. The Report [Doc. 7] is ADOPTED in its entirety. 2. Petitioner's Petition is DENIED.
Additionally, because reasonable jurists would not find the Court's assessment of the claims debatable or wrong, the Court DENIES Petitoiner's motion for a certificate of appealability [Doc. 9]. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Clerk of the Court shall close the district court file.
IT IS SO ORDERED.
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