September 9, 2013
ZEUS ROBLES, Petitioner,
DAVID LONG, Warden, Respondent.
ORDER (1) ADOPTING REPORT AND RECOMMENDATION; (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND, (3) DENYING CERTIFICATE OF APPEALABILITY (EFC No. 1, 15)
JANIS L. SAMMARTINO, District Judge.
Presently before the Court is Petitioner Zeus Robles's ("Petitioner") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). Also before the Court is Magistrate Judge Barbara L. Major's report and recommendation ("R&R") advising this Court to dismiss Petitioner's petition. (R&R, ECF No. 15).
Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district court's duties in connection with a magistrate judge's R&R. The district 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. Raddatz, 447 U.S. 667, 673-76 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). In the absence of timely objection, however, 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 advisory committee's note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ("[T]he district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.").
Here, Petitioner failed to file timely objections to the Magistrate Judge's R&R. ( See R&R 10, ECF No. 15) (ordering parties to file objections "no later than July 15, 2013."). Having reviewed the R&R, the Court finds that it is thorough, well-reasoned, and contains no clear error. Accordingly, the Court ADOPTS the Magistrate Judge's R&R in its entirety and DISMISSES Petitioner's petition.
The Court is obliged to determine whether a certificate of appealability should issue in this matter. See Fed. R. App. P. 22(b). A court may issue a certificate of appealability "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by showing that "reasonable jurists" could debate a court's assessment of the constitutional claims. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where, as here, the petition is dismissed on procedural grounds, a certificate of appealability "should issue when the petitioner shows, at least,  that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and  that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
Here, Petitioner failed to object at trial to his purported shackling in the presence of the jury. Thus, the state appellate court found that Petitioner waived this argument on appeal and the R&R properly concluded that Petitioner was foreclosed from advancing the argument as a basis for federal habeas relief. (R&R 8-9, ECF No. 15). Moreover, Petitioner's due process claim lacks merit because the state court record provides no indication that Petitioner's alleged shackling in the presence of the jury had any effect on the verdict. Indeed, the only evidence in the record regarding this issue suggests that the jury never saw the shackles at all. ( Id. at 10). Thus, the Court finds that no reasonable jurist would debate this Court's procedural ruling or its denial of Petitioner's constitutional claim.
Accordingly, the Court DENIES a certificate of appealability. This Order concludes the litigation in this matter. The Clerk shall close the file.
IT IS SO ORDERED.