Anthony Herrera v. F. Gonzalez

Filing 47

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY by Judge James V. Selna for Report and Recommendation (Issued) 38 . IT IS ORDERED THAT: 1. Petitioners request for an evidentiary hearing is denied. 2. Judgment shall be entered dismissing the action with prejudice. 3. The Clerk shall serve copies of this Order and the Judgment herein on the parties. 4. A Certificate of Appealability is denied. (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ANTHONY HERRERA,

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Petitioner,

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v.
LELAND McEWEN, Warden,

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Respondent.

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Case No. CV 09-6358 JVS (JCG)
ORDER ACCEPTING FINDINGS,
CONCLUSIONS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE AND
DENYING CERTIFICATE OF
APPEALABILITY

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the

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19 records herein, the Report and Recommendation of the United States Magistrate
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20 Judge, and Petitioner’s Objections to the Report and Recommendation, and has
21 made a de novo determination. The Court accepts the Magistrate Judge’s Report and
22 Recommendation.
In his Objections, Petitioner essentially restates the arguments made in the

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24 Petition. Those arguments lack merit for the reasons stated in the Report and
25 Recommendation.
Petitioner’s request is denied as an evidentiary hearing is not required in this

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The Report and Recommendation caption erroneously states the case number
as “CV 10-6358 JVS (JCG).” The correct case number is CV 09-6358 JVS (JCG).

1 case. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011); Schriro v. Landrigan,
2 550 U.S. 465, 474 (2007) (“[I]f the record refutes the applicant’s factual allegations
3 or otherwise precludes habeas relief, a district court is not required to hold an
4 evidentiary hearing.”).
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Additionally, for the reasons stated in the Report and Recommendation, the

6 Court finds that Petitioner has not made a substantial showing of the denial of a
7 constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v.
8 Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of
9 appealability.
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Accordingly, having made a de novo determination of those portions of the

11 Report and Recommendation to which objection was made, IT IS ORDERED
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1.

Petitioner’s request for an evidentiary hearing is denied.

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2.

Judgment shall be entered dismissing the action with prejudice.

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3.

The Clerk shall serve copies of this Order and the Judgment herein on

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4.

A Certificate of Appealability is denied.

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20 DATED: October 6, 2011
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_________________________________

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HON. JAMES V. SELNA
UNITED STATES DISTRICT JUDGE

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