-VBK Roberto Carlos Cruz v. Anthony Hedgpeth, No. 8:2010cv01509 - Document 33 (C.D. Cal. 2012)

Court Description: ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge George H Wu, IT IS ORDERED that: (1) the Court accepts the findings and recommendations of the Magistrate Judge with the changes noted above, and (2) the Court declines to issue a Certificate of Appealability (COA). Report and Recommendation (Issued) 31 (lmh)

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-VBK Roberto Carlos Cruz v. Anthony Hedgpeth Doc. 33 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 ROBERTO CARLOS CRUZ, Petitioner, 12 v. 13 14 ANTHONY HEDGPETH, Respondent. 15 ) ) ) ) ) ) ) ) ) ) No. SA CV 10-01509-GW (VBK) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE AS REVISED 16 17 Pursuant to 28 U.S.C. §636, the Court has reviewed the Petition 18 for Writ of Habeas Corpus (“Petition”), the records and files herein, 19 and the Amended Report and Recommendation of the United States 20 Magistrate Judge (“Amended Report”). 21 determination of the Amended Report. The Court has made a de novo 22 The Court makes the following changes to the Amended Report: 23 P. 18, Line 5: the correct year is 2006; and 24 p. 18, line 28: the correct citation is 25 at 538. 26 // 27 // 28 House v. Bell, 547 U.S. // Dockets.Justia.com 1 IT IS ORDERED that: (1) the Court accepts the findings and 2 recommendations of the Magistrate Judge with the changes noted above, 3 and (2) the Court declines to issue a Certificate of Appealability 4 (“COA”).1 5 6 DATED: March 21, 2012 GEORGE H. WU UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Under 28 U.S.C. §2253(c)(2), a Certificate of Appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” Here, the Court has adopted the Magistrate Judge’s finding and conclusion that the Petition is timebarred. Thus, the Court’s determination of whether a Certificate of Appealability should issue here is governed by the Supreme Court’s decision in Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595 (2000), where the Supreme Court held that, “[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner 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.” 529 U.S. at 484. As the Supreme Court further explained: “Section 2253 mandates that both showings be made before the court of appeals may entertain the appeal. Each component of the § 2253(c) showing is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments.” Id. at 485. Here, the Court finds that Petitioner has failed to make the requisite showing that “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” 2

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