United States District Court, S.D. California
ORDER ADOPTING REPORT AND RECOMMENDATION [DOC. NO.
25]; REJECTING OBJECTIONS [DOC. NO. 26]; DENYING PETITION
[DOC. NO. 9]; AND DENYING A CERTIFICATE OF
Cathy Ann, Bencivengo United States District Judge.
Camarena Hernandez (“Petitioner”), is a state
prisoner proceeding pro se with a Petition for Writ
of Habeas Corpus by a Person in State Custody pursuant to 28
U.S.C. § 2254. [Doc. No. 1.] This matter was referred to
United States Magistrate Judge William V. Gallo pursuant to
28 U.S.C. § 636(b)(1)(B). Magistrate Judge Gallo issued
a Report and Recommendation (“Report”)
recommending the Court deny the petition. [Doc. No. 25.]
Petitioner filed objections to the Report. [Doc. No.
de novo review of Petitioner's claims, the Court
finds the Report to be thorough, complete, and an accurate
analysis of the legal issues presented in the petition. For
the reasons explained below, the Court: (1) adopts the Report
in full; (2) rejects Petitioner's objections; (3) denies
the Petition for Writ of Habeas Corpus; and (4) denies a
certificate of appealability.
Report contains an accurate recital of the facts as
determined by the California Court of Appeal, and the Court
fully adopts the Report's statement of facts. As Judge
Gallo correctly noted, the Court presumes state court
findings of fact to be correct.
State Procedural Background
Report contains a complete and accurate summary of the state
court proceedings, and the Court fully adopts the
Report's statement of state procedural background.
Federal Procedural Background
18, 2016, Petitioner filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. [Doc. No. 1.] The
Court dismissed the action without prejudice, allowing
Petitioner until July 18, 2016 to satisfy the filing fee
requirement and file a First Amended Petition. [See
Doc. No. 5 at 3.] On May 25, 2016, Petitioner paid the filing
fee. [Doc. No. 6.] On July 19, 2016, Petitioner filed another
petition. [See Doc. No. 9.] The Court construed this
as a motion to reopen the case and a motion to amend.
[See Doc. No. 11.] On July 26, 2016, the Court
granted the motions and deemed the First Amended Petition
filed as of July 13, 2016, the date in which Petitioner
signed the Petition. [See Doc. No. 11.] On April 12,
2017, Respondent timely filed an Answer to the Petition and
lodged numerous state court records. [Doc. No. 20.] On May
11, 2017, Petitioner timely filed a Traverse. [Doc. No. 24.]
28, 2017, Magistrate Judge Gallo issued the Report
recommending that the petition be denied. [Doc. No. 25.] On
August 25, 2017, Petitioner filed Objections to the Report.
[Doc. No. 26.] In his objections, Petitioner argues that the
magistrate judge erred in finding that the state court did
not make an unreasonable application of clearly established
federal law or an unreasonable determination of the facts in
light of the evidence. Petitioner also requests an
evidentiary hearing. Because Petitioner has objected to the
Report in its entirety, the Court reviews the Report de
novo. 28 U.S.C. § 636(b)(1)(C); Holder v.
Holder, 392 F.3d 1009, 1022 (9th Cir. 2004).
Report sets forth the correct standard of review for a
petition for writ of habeas corpus. Under 28 U.S.C. §
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the ...