United States District Court, S.D. California
Khary B. Watson, Petitioner,
Paul Brazelton, et al., Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE;
[Doc. No. 10] GRANTING RESPONDENT'S MOTION TO DISMISS AND DISMISSING PETITION;
[Doc. No. 8] DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
ANTHONY J. BATTAGLIA, District Judge.
Petitioner Khary B. Watson, a state prisoner proceeding pro se and in forma pauperis, filed a petition for writ of habeas corpus ("petition") pursuant to 28 U.S.C. § 2254. [Doc. No. 1.] Petitioner challenges his conviction of first degree murder, and Respondent moved to dismiss. [Doc. No. 8.] The matter was referred to United States Magistrate Judge Barbara L. Major for preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), and Civil Local Rule HC.2. Judge Major issued a well-reasoned and thorough Report recommending the Court grant Respondent's motion to dismiss. [Doc. No. 10.]
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). No objections have been filed.
Accordingly, the Court concludes the magistrate judge issued an accurate report and well-reasoned recommendation that the petition be denied. The Court ADOPTS the Report and Recommendation in its entirety and GRANTS the motion to dismiss.
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 ...