Girard Flynn v. J Soto

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Valerie Baker Fairbank for Report and Recommendation (Issued) 31 . (mba)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GIRARD FLYNN,
Petitioner,

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v.

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DEBBIE ASUNCION,
Respondent.

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Case No. LA CV 15-03283 VBF (JCG)
ORDER
Adopting the Report & Recommendation;
Denying the Habeas Corpus Petition;
Denying Document #19 as Moot;
Denying Document #21 as Moot;
Terminating the Case (JS-6);
Directing Entry of Separate Final Judgment;
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 (“R&R”), [Dkt. No. 31], Petitioner’s Objections

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to the Report and Recommendation (“Objections”), [Dkt. No. 33], and the remaining

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record, and has made a de novo determination.

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

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Petition, and lack merit for the reasons set forth in the R&R.1 There is one issue

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however, that warrants brief discussion here.

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In his Objections, Petitioner takes issue with the notion that some of his claims

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might not have been exhausted. (See Objections at 1.) However, as explained in the

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R&R, the Court has exercised its discretion to deny such claims on the merits, without

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making any conclusive determination as to whether they have been exhausted in state

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court, pursuant to Cassett v. Stewart, 406 F.3d 614, 623-34 (9th Cir. 2005). (See R&R

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at 6 n.4.) As such, Petitioner’s focus on “show[ing] that [he] did exhaust [his]

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remedies” is misplaced and moot.

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Accordingly, IT IS ORDERED THAT:

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The Report and Recommendation is ADOPTED.

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The petition for a writ of habeas corpus is DENIED.

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Petitioner’s motion to stay case (Document #19) is DENIED as moot.

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Petitioner’s motion to appoint counsel (Document #21) is DENIED as moot.

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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).

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Petitioner does not explain, and the Court does not see, how the documents attached to the
Objections — many of which are and have been part of the record — do anything other than reiterate
the same arguments that the Court already addressed in the R&R. (See Objections at 7-159); see also
Rabb v. Lopez, 2012 WL 5289593, at *1 (C.D. Cal. Oct. 25, 2012) (accepting the findings and
recommendations of the Magistrate Judge because “[t]hose documents [attached to Petitioner’s
Objections] appear to be the same ones that were attached to the Petition; the Court already has taken
them into consideration”).

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Thus, the Court declines to issue a certificate of appealability.

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Separate final judgment will be entered in favor of the respondent.

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The case shall be TERMINATED and CLOSED (JS-6).

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Dated: Monday, January 23, 2017

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HON. VALERIE BAKER FAIRBANK
UNITED STATES DISTRICT JUDGE

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