Sharonoff v. Warden

Filing 93

ORDER signed by District Judge Troy L. Nunley on 3/8/18: The findings and recommendations filed May 16, 2017 84 , are adopted in full, except as provided by footnote 1 of this Order. The petition for writ of habeas corpus 1 is denied. The Court declines to issue the certificate of appealability. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH A. SHARONOFF, 12 Petitioner, 13 14 No. 2:13-cv-0794 TLN AC P v. ORDER WARDEN, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On May 16, 2017, the magistrate judge filed findings and recommendations herein, which 20 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within fourteen days. (ECF No. 84) Petitioner 23 has filed objections to the findings and recommendations. (ECF No. 88.) In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 24 25 Court has conducted a de novo review of this case. In doing so, the Court has carefully reviewed 26 the entire file. Except as identified in the accompanying footnote, the Court finds the findings 27 /// 28 /// 1 1 and recommendations to be supported by the record and by proper analysis.1 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The findings and recommendations filed May 16, 2017 (ECF No. 84), are adopted in 4 full, except as provided by footnote 1 of this Order; 5 2. The petition for writ of habeas corpus (ECF No. 1) is denied; and 6 3. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 7 2253. 8 9 Dated: March 8, 2018 10 11 12 Troy L. Nunley United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 1 26 27 28 The magistrate judge correctly observes that “the question in a § 2254 proceeding is not whether the habeas judge would have made the same ruling as the trial judge, but whether the reviewing state court unreasonably applied a governing precedent of the United States Supreme Court.” (ECF No. 84 at 13 (emphasis added).) Nevertheless, in the three sentences preceding that statement, the magistrate judge answers the very question she is not asked — explaining why she would not have made the same ruling if she were the trial judge. (ECF No. 84 at 13:14– 21.) Consequently, the Court declines to adopt those three sentences. 2

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