Thomas Earl Evans v. James Tilton

Filing 44

ORDER ADOPTING 38 FINDINGS and RECOMMENDATION, DENYING Motion for Discovery, DENYING Petition for Writ of Habeas Corpus, Directing Clerk of Court to Enter Judgment in Favor of Respondent, and DECLINING to Issue Certificate of Appealability, signed by Chief Judge Anthony W. Ishii on 2/14/2009. CASE CLOSED. (Sondheim, M)

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1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 JAMES TILTON, 13 Respondent. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. On October 22, 2008, the Magistrate Judge issued Findings and Recommendation that Petitioner's motion for discovery be denied and the petition for writ of habeas corpus be DENIED. This Findings and Recommendation was served on all parties and contained notice that any objections were to be filed within thirty (30) days of the date of service of the order. On December 30, 2008, Petitioner filed timely objections to the Findings and Recommendation. On December 31, 2008, Respondent filed a reply. In accordance with the provisions of 28 U.S.C. 636 (b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, including Petitioner's objections, the Court concludes that the Magistrate Judge's Findings and Recommendation is supported by the record and proper analysis. Petitioner's objections present no grounds for questioning the Magistrate Judge's analysis. Petitioner has failed to show how the requested 1 / [Doc. 38] v. THOMAS EARL EVANS, Petitioner, CV F 07-00678 AWI DLB HC ORDER ADOPTING FINDINGS AND RECOMMENDATION, DENYING MOTION FOR DISCOVERY, DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY UNITED STATES DISTRICT COURT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discovery would support his claims. Accordingly, IT IS HEREBY ORDERED that: 1. The Findings and Recommendation issued October 22, 2008, is ADOPTED IN FULL; 2. 3. 4. Petitioner's request for discovery is DENIED; The petition for writ of habeas corpus is DENIED; The Clerk of the Court is DIRECTED to enter judgment in favor of Respondent; and 5. The court declines to issue a Certificate of Appealability. 28 U.S.C. 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (a COA should be granted where the applicant has made "a substantial showing of the denial of a constitutional right," i.e., when "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong"; Hoffman v. Arave, 455 F.3d 926, 943 (9th Cir. 2006) (same). In the present case, the Court finds that reasonable jurists would not find it debatable that the state courts' decision denying Petitioner's petition for writ of habeas corpus were not "objectively unreasonable." IT IS SO ORDERED. Dated: 0m8i78 February 14, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE 2

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