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Harry T. Whitehead v. Mcdonald

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


March 4, 2013

HARRY T. WHITEHEAD, PETITIONER,
v.
MCDONALD, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Hon. Gary A. Feess 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 Opposition to Respondent's Motion to Dismiss, Petitioner's Objections to the Report and Recommendation, and the remaining record.*fn1

There is nothing in Petitioner's Objections that would excuse Petitioner's failure to exhaust his state court remedies. As such, the Court finds that the Objections lack merit for the reasons set forth in the Report and Recommendation.

Furthermore, to the extent that Petitioner's Objections include a request for an evidentiary hearing, Petitioner's request is denied. See Cullen v. Pinholster, 131

S.Ct. 1388, 1398 (2011); Schriro v. Landrigan, 550 U.S. 465, 474 (2007) ("[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.").

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 without prejudice;

3. All pending motions are denied as moot and terminated; and

4. 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 made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of appealability.


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