Erwin Johnny Sanchez v. Ducart

Filing 13

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 12 . IT IS ORDERED THAT: (1) The Report and Recommendation is approved and accepted; (2) Judgment be entered denying the Petition 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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 ERWIN JOHNNY SANCHEZ, 10 Petitioner, 11 12 v. DUCART, Warden, 13 14 Respondent. ___________________________ ) ) ) ) ) ) ) ) ) ) ) Case No. SA CV 14-1290 BRO (JCG) ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY AND EVIDENTIARY HEARING 15 16 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the 17 Magistrate Judge’s Report and Recommendation, and the remaining record, and has 18 made a de novo determination. No objections to the Report and Recommendation 19 have been filed. Accordingly, IT IS ORDERED THAT: 20 21 1. The Report and Recommendation is approved and accepted; 22 2. Judgment be entered denying the Petition and dismissing this action with prejudice; and 23 24 3. The Clerk serve copies of this Order on the parties. 25 Additionally, for the reasons set forth in the Report and Recommendation, the 26 Court finds that Petitioner has not made a substantial showing of the denial of a 27 constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. 28 Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of 1 appealability. 2 Nor is Petitioner entitled to an evidentiary hearing. See Cullen v. Pinholster, 3 131 S. Ct. 1388, 1398 (2011) (AEDPA “requires an examination of the state court4 decision at the time it was made. It follows that the record under review is limited to 5 the record in existence at that same time i.e., the record before the state court.”). 6 7 DATED: June 5, 2015 8 9 10 11 ____________________________________ HON. BEVERLY REID O’CONNELL UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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