(HC) Simmons v. Allison
Filing
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ORDER signed by Chief District Judge Troy L. Nunley on 1/24/2025 ADOPTING 24 Findings and Recommendations in full and DENYING the Petition for Writ of Habeas Corpus. The Court DECLINES to issue the certificate of appealability. CASE CLOSED. (Deputy Clerk OML)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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THEO L. SIMMONS,
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Petitioner,
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No. 2:22-cv-01516-TLN-AC
v.
ORDER
KATHLEEN ALLISON,
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Respondent.
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Petitioner Theo L. Simmons (“Petitioner”), a state prisoner proceeding through counsel,
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filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was
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referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule
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302.
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On November 20, 2024, the magistrate judge filed findings and recommendations herein
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which were served on all parties and which contained notice to all parties that any objections to
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the findings and recommendations were to be filed within twenty-one days. (ECF No. 24.)
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Petitioner filed objections to the findings and recommendations (ECF No. 27), to which
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Respondent Kathleen Allison (“Respondent”) has replied (ECF No. 28).
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this
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court has conducted a de novo review of this case. The Court notes that the objections identify
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two typographical errors in the findings and recommendations. (ECF No. 27 at 3.) Upon review,
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the Court confirms the reference to Cal. Penal Code § 12022.53(d) at page 2, line 2 should be a
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reference to Cal. Penal Code § 12022.53(b) (see ECF No. 18-1 at 22–23), and “prejudice prong”
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at page 7, line 9 should read “performance prong.” Having carefully reviewed the entire file, the
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Court finds that, after correction of the two identified typographical errors, the findings and
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recommendations are supported by the record and by proper analysis.
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Accordingly, IT IS HEREBY ORDERED that:
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1. With the exception of the two corrections noted above, the Findings and
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Recommendations (ECF No. 24) are ADOPTED IN FULL;
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2. The Petition for Writ of Habeas Corpus is DENIED;
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3. The Court declines to issue the certificate of appealability referenced in 28 U.S.C.
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§ 2253; and
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4. The Clerk of the Court is directed to close this case.
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IT IS SO ORDERED.
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DATED: January 24, 2025
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___________________________________
TROY L. NUNLEY
CHIEF UNITED STATES DISTRICT JUDGE
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