Douglas Leon v. F. Foulk

Filing 33

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Judge David O. Carter for Report and Recommendation (Final) 30 , Report and Recommendation (Issued) 23 . IT IS THEREFORE ORDERED that Judgment be entered (1) denying the Petition for a Writ of Habeas Corpus; and (2) dismissing this action with prejudice. (iva)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DOUGLAS LEON,
Petitioner,

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v.
F. FOULK, Warden,
Respondent.

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Case No. CV 14-2102-DOC (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 Petition for a Writ of

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Habeas Corpus, the records on file, and both the original and final Report and

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Recommendation of the United States Magistrate Judge. The Court has engaged in a de

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novo review of those portions of the original Report to which Petitioner has objected. The

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Court accepts the findings and recommendation of the Magistrate 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, 137

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

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2005). “It is axiomatic that when issues can be resolved with reference to the state court

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record, an evidentiary hearing becomes nothing more than a futile exercise.” Totten, 137

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F.3d at 1176. Here, the Magistrate Judge concluded all of Petitioner’s claims could be

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resolved by reference to the state court record. Accordingly, the Court denies Petitioner’s

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request for an evidentiary hearing.

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IT IS THEREFORE ORDERED that Judgment be entered (1) denying the Petition
for a Writ of Habeas Corpus; and (2) dismissing this action with prejudice.

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Dated: February 3, 2016
_______________________________
HONORABLE DAVID O. CARTER
UNITED STATES DISTRICT JUDGE

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