-RNB Robert Earl Hurst III v. McEwen, No. 5:2011cv00594 - Document 27 (C.D. Cal. 2012)

Court Description: ORDER by Judge Dolly M. Gee, DENYING PETITIONER'S APPLICATION FOR APPOINTMENT OF COUNSEL 24 AND ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 18 . (See document for details.) IT THEREFORE IS ORDERED that petitioner's request for an evidentiary hearing is denied; and that Judgment be entered denying the Petition and dismissing this action with prejudice. (rla)

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-RNB Robert Earl Hurst III v. McEwen Doc. 27 1 2 , .1L,;lIY UHlir I IHAlllllS O()CUMUil WAS SlfMLl III ~ I if{SI CLASS MAIl. POSfAGE PREPAID. lO*ttcoo,mr 'l.T 3 (OR PARlIES) A11HEIR RESPEClIVE MOS1 REGEN 1AUUKI:.SS Uf RicCURD IN 1HI~ AC~I~N ON THIS DAlE. 4 5 DA1ED~...LIq,,~ .. i -- _SlRX\\St, \l D . ~ "-'~- -. CLE[~01~:~~I~-'JO" j CENTRAL DIST ICT OF CALIFORNIA BY DEPUTY 6 7 8 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERT EARL HURST III, 12 13 14 15 Petitioner, vs. LELAND McEWEN, Warden, Respondent. Case No. EDCV 11-00594-DMG (RNB) ORDER DENYING PETITIONER'S APPLICATION FOR APPOINTMENT OF COUNSE!:t AND ACCEPTING FINDINGS AI'lD RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 16 17 On September 26, 2011, the assigned Magistrate Judge issued a Report and 18 Recommendation herein. The Magistrate Judge recommended that habeas reliefbe 19 denied with respect to the three grounds for reliefalleged in the Petition, and also that 20 petitioner's request for an evidentiary hearing be denied. Following extensions of 21 time, petitioner filed objections to the Report and Recommendation on December 21, 22 2011. Concurrently, petitioner filed an Application for Appointment of Counsel. 23 According to petitioner, he needs counsel in order to "locate potential witnesses (who 24 have testimony crucial to both [his] innocence and the issues contained on habeas 25 corpus)." Petitioner maintains that, if provided counsel, he can make a showing that 26 he is "actually innocent." 27 To the extent that petitioner is requesting counsel for the purpose of further 28 developing the record with respect to the three grounds for relief alleged in the 1 Dockets.Justia.com 1 Petition, the Court notes that consideration ofpetitioner's claims is governed by the 2 AEDPA standard of review set forth in 28 U.S.C. § 2254(d)(l) and that, as the 3 SupremeCourtrecentlyheldinCullenv.Pinholster,- U.S.-, 131 S.Ct.1388, 1398, 4 179 L. Ed. 2d 557 (20 II), review of state court decisions under § 2254(d)(1 ) "is 5 limited to the record that was before the state court that adjudicated the claim on the 6 merits." 7 To the extent that petitioner is requesting counsel for the purpose of locating 8 witnesses to prove that he is "actually innocent," the Court notes that, under Herrera 9 v. Collins, 506 U.S. 390,400-01, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993), the 10 existence merely of "new evidence" relevant to the guilt of a state prisoner is not a II ground for federal habeas corpus relief. A claim of actual innocence is not itself a 12 cognizable constitutional claim. See id. at 404. Rather, like the "actual innocence" 13 claim of the petitioner in Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 14 808 (1995), a federal habeas petitioner's "actual innocence" claim merely constitutes 15 a possible gateway for the consideration of the petitioner's other substantive 16 constitutional claims, to the extent that those claims might otherwise be procedurally 17 barred (e.g., by the one-year limitation provision or the procedural default doctrine). 18 See Herrera, 506 U.S. at 416-18; see also Coleyv. Gonzales, 55 F.3d 1385, 1387 (9th 19 Cir. 1995). Here, the Magistrate Judge has not found that any of petitioner's 20 substantive federal constitutional claims is procedurally barred. 21 22 For the foregoing reasons, petitioner's application for the appointment of counsel is denied. 23 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the 24 records and files herein, and the Report and Recommendation of the United States 25 Magistrate Judge. Having made a de novo determination of those portions of the 26 Report and Recommendation to which objections have been made, the Court accepts 27 the findings and recommendations of the Magistrate Judge. 28 II 2 1 IT THEREFORE IS ORDERED that petitioner's request for an evidentiary 2 hearing is denied; and that Judgment be entered denying the Petition and dismissing 3 this action with prejudice. 4 5 DATED: \)P-/'PL 6 7 DOLLV M. GEE 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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