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Hernandez v. Kernan

United States District Court, S.D. California

September 7, 2017

ANDRES HERNANDEZ, Petitioner,
v.
SCOTT KERNAN, Secretary, et al., Respondents.

          ORDER ADOPTING REPORT AND RECOMMENDATION [DOC. NO. 25]; REJECTING OBJECTIONS [DOC. NO. 26]; DENYING PETITION [DOC. NO. 9]; AND DENYING A CERTIFICATE OF APPEALABILITY

          Hon. Cathy Ann, Bencivengo United States District Judge.

         Andres 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. 26.][1]

         Following 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.

         BACKGROUND

         I. Factual Background

         The 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.

         II. State Procedural Background

         The 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.

         III. Federal Procedural Background

         On May 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.]

         On July 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).

         DISCUSSION

         I. Legal Standard

         The Report sets forth the correct standard of review for a petition for writ of habeas corpus. Under 28 U.S.C. § 2254(d):

(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 ...

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