Gehrke v. Sullivan

Filing 19

ORDER VACATED ON 2/13/2008 PER ORDER 23 - ORDER ADOPTING REPORT AND RECOMMENDATIONS. Court adopts the 18 Report and Recommendations in its entirety and denies the petition for writ of habeas corpus. Signed by Judge Irma E. Gonzalez on 2/1/2008. (jah). Modified on 2/13/2008 - Order vacated. Edited text (jah).

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Gehrke v. Sullivan Doc. 19 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 JESSE LYLE GEHRKE vs. R. SULLIVAN, Warden, Respondent. On July 30, 2007, petitioner Jesse Lyle Gehrke, a state prisoner proceeding pro se, filed an Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254 challenging his San Diego Superior Court conviction for assault with a deadly weapon and assault by a life prisoner. (Doc. No. 9.) Petitioner advances two claims: (1) the trial court denied his right to due process by requiring him to be shackled during trial; (2) the trial court denied his right to due process by instructing the jury that the could be liable for inflicting injury if he participated in a group beating of the victim. This matter was referred to United States Magistrate Judge Leo S. Papas pursuant to 28 U.S.C. 636(b)(1)(B). On November 20, 2007, Magistrate Judge Papas issued a Report and Petitioner, CASE NO. 07cv0575 IEG (LSP) ORDER (1) ADOPTING THE MAGISTRATE JUDGE'S REPORT and (2) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (Doc. 9, 18) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Recommendation recommending the Court deny the petition for writ of habeas corpus in its entirety because the California Court of Appeal's decision in petitioner's case was not contrary to nor an unreasonable application of federal law. (Doc. No. 18.) Neither party has filed objections to the -107cv575 Dockets.Justia.com 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 Report, which were due December 20, 2007. Accordingly, the Court ADOPTS the Report in its entirety, and DENIES the petition for writ of habeas corpus. IT IS SO ORDERED. DATED: February 1, 2008 IRMA E. GONZALEZ, Chief Judge United States District Court -2- 07cv575

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