(HC) Simmons v. Allison

Filing 29

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THEO L. SIMMONS, 12 Petitioner, 13 14 No. 2:22-cv-01516-TLN-AC v. ORDER KATHLEEN ALLISON, 15 Respondent. 16 17 Petitioner Theo L. Simmons (“Petitioner”), a state prisoner proceeding through counsel, 18 filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 20 302. 21 On November 20, 2024, the magistrate judge filed findings and recommendations herein 22 which were served on all parties and which contained notice to all parties that any objections to 23 the findings and recommendations were to be filed within twenty-one days. (ECF No. 24.) 24 Petitioner filed objections to the findings and recommendations (ECF No. 27), to which 25 Respondent Kathleen Allison (“Respondent”) has replied (ECF No. 28). 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 27 court has conducted a de novo review of this case. The Court notes that the objections identify 28 two typographical errors in the findings and recommendations. (ECF No. 27 at 3.) Upon review, 1 1 the Court confirms the reference to Cal. Penal Code § 12022.53(d) at page 2, line 2 should be a 2 reference to Cal. Penal Code § 12022.53(b) (see ECF No. 18-1 at 22–23), and “prejudice prong” 3 at page 7, line 9 should read “performance prong.” Having carefully reviewed the entire file, the 4 Court finds that, after correction of the two identified typographical errors, the findings and 5 recommendations are supported by the record and by proper analysis. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. With the exception of the two corrections noted above, the Findings and 8 Recommendations (ECF No. 24) are ADOPTED IN FULL; 9 2. The Petition for Writ of Habeas Corpus is DENIED; 10 3. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. 11 § 2253; and 12 4. The Clerk of the Court is directed to close this case. 13 IT IS SO ORDERED. 14 DATED: January 24, 2025 15 16 17 18 19 ___________________________________ TROY L. NUNLEY CHIEF UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 2

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