Pasqual Gabriel Martinez v. K. Santoro

Filing 33

ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY by Judge Dale S. Fischer re Report and Recommendation (Issued), 27 . IT IS ORDERED THAT: 1) The Report and Recommendation is ap proved and accepted; 2) Judgment be entered dismissing this action with prejudice; and 3) The Clerk serve copies of this Order on the parties. The Court declines to issue a certificate of appealability. Nor is Petitioner entitled to an evidentiary hearing. (kh)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 PASQUAL GABRIEL MARTINEZ, Petitioner, v. K. SANTORO, Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) Case No. LA CV 15-5399 DSF (JCG) ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate 19 Judge’s Report and Recommendation (“R&R”), [Dkt. No. 27], Petitioner’s Objections 20 to the Report and Recommendation (“Objections”), [Dkt. No. 32], and the remaining 21 record, and has made a de novo determination. 22 23 24 Petitioner’s Objections reiterate the same arguments made in the Petition and the Traverse, and lack merit for the reasons set forth in the R&R. Accordingly, IT IS ORDERED THAT: 25 1. The Report and Recommendation is approved and accepted; 26 2. Judgment be entered dismissing this action with prejudice; and 27 3. The Clerk serve copies of this Order on the parties. 28 1 1 Additionally, for the reasons stated in the Report and Recommendation, the 2 Court finds that Petitioner has not made a substantial showing of the denial of a 3 constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. 4 Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of 5 appealability. 6 Nor is Petitioner entitled to an evidentiary hearing. See Cullen v. Pinholster, 7 131 S. Ct. 1388, 1398 (2011) (AEDPA “requires an examination of the state court 8 decision at the time it was made. It follows that the record under review is limited to 9 the record in existence at that same time i.e., the record before the state court.”). 10 5/25/17 11 12 13 14 DATED: HON. DALE S. FISCHER UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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