Billy Ruiz v. Frank Chavez

Filing 31

ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY AND EVIDENTIARY HEARING by Judge Beverly Reid O'Connell re Report and Recommendation (Issued) 29 . IT IS ORDERED THAT: 1) The Report and Recommendation is approved and accepted; 2) Judgment be entered denying the FAP and dismissing this action with prejudice; and 3) The Clerk serve copies of this Order on the parties. Additionally, the Court declines to issue a certificate of appealability. Nor is Petitioner entitled to an evidentiary hearing. (kh)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BILLY RUIZ,

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Petitioner,

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v.

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W.L. MOTGOMERY,

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Respondent.
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Case No. SA CV 13-1641 BRO (JCG)
ORDER ACCEPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE AND
DENYING CERTIFICATE OF
APPEALABILITY AND
EVIDENTIARY HEARING

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

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17 Petition (“FAP”), the Magistrate Judge’s Report and Recommendation, Petitioner’s
18 Objections to the Report and Recommendation, and the remaining record, and has
19 made a de novo determination.
Petitioner’s Objections reiterate the arguments made in the FAP and Reply,
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21 and lack merit for the reasons set forth in the Report and Recommendation.
Accordingly, IT IS ORDERED THAT:
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1.

The Report and Recommendation is approved and accepted1/;

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2.

Judgment be entered denying the FAP and dismissing this action with
prejudice; and

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The Court also construes the Magistrate Judge’s December 20, 2013 minute
28 order granting in part Petitioner’s stay request as a Report and Recommendation, and
adopts it.

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3.

The Clerk serve copies of this Order on the parties.

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Additionally, for the reasons set forth in the Report and Recommendation, the

3 Court finds that Petitioner has not made a substantial showing of the denial of a
4 constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v.
5 Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of
6 appealability.
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Nor is Petitioner entitled to an evidentiary hearing. See Cullen v. Pinholster,

8 131 S. Ct. 1388, 1398 (2011) (AEDPA “requires an examination of the state court9 decision at the time it was made. It follows that the record under review is limited to
10 the record in existence at that same time i.e., the record before the state court.”).
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12 DATED: August 7, 2015
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HON. BEVERLY REID O’CONNELL
UNITED STATES DISTRICT JUDGE

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