Mark Andres Torres v. Martin Biter

Filing 20

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Terry J. Hatter, Jr for Report and Recommendation (Issued), 16 , MOTION to Strike Motion to Dismiss MOTION to Dismiss Petition for Writ of Habeas Corpus Memorandum of Points and Authorities 8 11 . IT IS ORDERED that: (1) the Court accepts the findings and recommendations of the Magistrate Judge, and (2) the Court declines to issue a Certificate of Appealability (COA). (rh)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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MARK ANDRES TORRES,

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Petitioner,

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v.

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MARTIN BITER,

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Respondents.

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No. CV 13-07907-TJH (VBK)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED STATES
MAGISTRATE JUDGE

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

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for Writ of Habeas Corpus (“Petition”), the records and files herein,

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and the Report and Recommendation of the United States Magistrate

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Judge (“Report”). Further, the Court has engaged in de novo review of

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those portions of the Report to which Petitioner has objected.

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IT IS ORDERED that: (1) the Court accepts the findings and

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recommendations of the Magistrate Judge, and (2) the Court declines to

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issue a Certificate of Appealability (“COA”).1

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DATED: August 4, 2014
TERRY J. HATTER, JR.
SENIOR UNITED STATES DISTRICT JUDGE

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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 accepted 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.”
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