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Louis Charles Arbee Ii v. Alan Hernandez

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 4, 2013

LOUIS CHARLES ARBEE II, PETITIONER,
v.
ALAN HERNANDEZ, CHIEF DEPUTY WARDEN, RESPONDENT

The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; [Doc. No. 11] OVERRULING PETITIONER'S OBJECTIONS; [Doc. No. 12]

GRANTING RESPONDENT'S MOTION TO DISMISS FIRST AMENDED PETITION [Doc. No. 7]. DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

Petitioner Louis Charles Arbee II filed a first amended petition for writ of habeas corpus ("petition") pursuant to 28 U.S.C. § 2254 challenging the California Department of Corrections' March 8, 2011 decision finding him guilty of a rules violation for violating Title 15 of the California Code of Regulations, section 3005(d)(1), battery with a weapon or physical force causing mortal or serious injury or rape. See Doc. No. 5. Respondent moves to dismiss the petition, arguing that Petitioner's challenge to the disciplinary action has been procedurally defaulted. See Doc. No. 7. Petitioner filed a response to the motion. See Doc. No. 9. The matter was referred to United States Magistrate Judge Bernard G. Skomal for preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), and Civil Local Rule HC.2. Judge Skomal issued a well-reasoned and thorough Report recommending that the petition be dismissed. See Doc. No. 11. Petitioner filed objections to the Report and Recommendation, to which Respondent replied. See Doc. Nos. 12, 13.

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). Due to the general nature of Petitioner's objections, the Court conducted a de novo review of the entire record. The Court finds the objections to be without merit.

Accordingly, the Court concludes that Judge Skomal issued an accurate report and well-reasoned recommendation that Respondent's motion be granted and the instant petition be dismissed. The Court ADOPTS the Report and Recommendation in its entirety, GRANTS Respondent's motion to dismiss, and DISMISSES Petitioner's first amended petition with prejudice.

CERTIFICATE OF APPEALABILITY

Rule 11 of the Federal Rules Governing Section 2254 Cases states that "the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability is not issued unless there is "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Under this standard, a petitioner must show 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. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000). For the reasons set forth in the Report and Recommendation and incorporated by reference herein, the Court finds that this standard has not been met and therefore DECLINES to issue a certificate of appealability in this case.

The Clerk of Court is instructed to close the case.

IT IS SO ORDERED.

20130404

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