Clarence Zimmerman v. Fredrick Foulk

Filing 41

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge R. Gary Klausner for Report and Recommendation (Final) 40 . (mrgo)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CLARENCE ZIMMERMAN,

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Petitioner,
v.

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FREDRICK FOULK, Warden,
Respondent.

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Case No. CV 13-8597-RGK (KK)
ORDER ACCEPTING FINDINGS
AND RECOMMENDATION OF
UNITED STATES MAGISTRATE
JUDGE

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

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for a Writ of Habeas Corpus, the records on file, and both the original and final Report

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and Recommendation of the United States Magistrate Judge. The Court has engaged

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in a de novo review of those portions of the original Report to which Petitioner has

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objected. The Court accepts the Final Report and Recommendation of the Magistrate

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Judge.

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In his objections to the original Report, Petitioner also requests an evidentiary

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hearing. However, in habeas proceedings, “an evidentiary hearing is not required on

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issues that can be resolved by reference to the state court record.” Totten v. Merkle,

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137 F.3d 1172, 1176 (9th Cir. 1998); see also Earp v. Ornoski, 431 F.3d 1158, 1173

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(9th Cir. 2005). “It is axiomatic that when issues can be resolved with reference to the

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state court record, an evidentiary hearing becomes nothing more than a futile exercise.”

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Totten, 137 F.3d at 1176. Here, the Magistrate Judge concluded all of Petitioner’s

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claims could be resolved by reference to the state court record. Accordingly, the Court

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denies Petitioner’s request for an evidentiary hearing.

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IT IS THEREFORE ORDERED that Judgment be entered (1) denying the First

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Amended Petition for a Writ of Habeas Corpus; and (2) dismissing this action with

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prejudice.

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Dated: June 2, 2015
_______________________________
HONORABLE R. GARY KLAUSNER
UNITED STATES DISTRICT JUDGE

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