Lewis Hardin v. B M Cash

Filing 74

ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY by Judge Cormac J. Carney for Report and Recommendation (Issued), 63 . IT IS ORDERED THAT: 1.The Report and Recommendation is approved and accepted; 2. Judgment be entered denying the Petition and dismissing this action with prejudice; and 3. The Clerk serve copies of this Order on the parties. Additionally, for the reasons stated in the Report and Recommendati on, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of appealability. (See Order for details) (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LEWIS HARDIN,
Petitioner,

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v.

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B.M. CASH,
Respondent.

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Case No. CV 11-0632 CJC (JCG)
ORDER ACCEPTING REPORT AND
RECOMMENDATION 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, the Magistrate

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Judge’s Report and Recommendation, Petitioner’s Objections to the Report and

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Recommendation, and the remaining record, and has made a de novo determination.

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Petitioner’s Objections generally reiterate the arguments made in the Petition

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and Traverse, and lack merit for the reasons set forth in the Report and

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Recommendation.1

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In his Objections, Petitioner once again attempts to raise an ineffective assistance
of counsel claim. The Court, however, previously denied Petitioner’s motion to amend
his habeas petition to include such a claim, [see Dkt. No. 55], and, in any event, need
not consider his new claim at this juncture. See United States v. Howell, 231 F.3d 615,
621-22 (9th Cir. 2000) (“[A] district court has discretion, but is not required, to
consider evidence presented for the first time in a party’s objection to a magistrate
judge’s recommendation”).

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Accordingly, IT IS ORDERED THAT:

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1.

The Report and Recommendation is approved and accepted;

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2.

Judgment be entered denying the Petition and dismissing this action with
prejudice; and

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3.

The Clerk serve copies of this Order on the parties.

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Additionally, for the reasons stated in the Report and Recommendation, the

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Court finds that Petitioner has not made a substantial showing of the denial of a

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constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v.

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Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of

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appealability.

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DATED: May 22, 2014
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HON. CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE

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