Cole v. Cates et al

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 35 Report and Recommendations. Court adopts Magistrate Judge Porter's Report and Recommendation in its entirety and denies the petition for writ of habeas corpus. Court sua sponte denies a Certificate of Appealability. Clerk shall close the case. Signed by Judge Irma E. Gonzalez on 12/14/2010.(All non-registered users served via U.S. Mail Service)(jah)

Cole v. Cates et al

Doc. 37

1 2 3 4 5 6 7 8 9 10 KEVIN CHARLES COLE, 11 Peitioner, 12 13 14 15 16 17 18 19 Petitioner Kevin Charles Cole ("Petitioner"), a state prisoner proceeding pro se, filed a petition 20 for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his San Diego County Superior 21 Court convictions. (Doc. No. 1.) Respondent Matthew Cate filed an Answer and Memorandum of 22 Points and Authorities, and Petitioner filed a traverse. 23 On October 21, 2010, Magistrate Judge Louisa S. Porter issued a Report and Recommendations 24 recommending the Court deny the petition for writ of habeas corpus, and requiring any objections to 25 be filed no later than November 16, 2010. (Doc. No. 35.) To date, Petitioner has not filed objections. 26 The Court HEREBY ADOPTS Magistrate Judge Porter's well-reasoned Report and 27 Recommendation in its entirety, and DENIES the petition for writ of habeas corpus. The Clerk of the 28 Court shall close the case. -109cv0653

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
CASE NO. 09cv0653 - IEG (POR) ORDER: (1) ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; (2) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS; and (3) DENYING CERTIFICATE OF APPEALABILITY [Doc. Nos. 1, 35]

vs.

MATTHEW CATE, Secretary, et al., Respondents.

Dockets.Justia.com

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In addition, the Court sua sponte DENIES a certificate of appealability. A petitioner complaining of detention arising from state court proceedings must obtain a certificate of appealability to file an appeal of the final order in a federal habeas proceeding. 28 U.S.C. § 2253(c)(1)(A) (2007). The district court may issue a certificate of appealability if the petitioner "has made a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). To make a "substantial showing," the petitioner must "demonstrat[e] that `reasonable jurists would find the district court's assessment of the constitutional claims debatable[.]'" Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, Petitioner has not made a "substantial showing" as to any of the claims raised by his petition, and therefore the Court declines to issue a certificate of appealability. IT IS SO ORDERED.

DATED: December 14, 2010 IRMA E. GONZALEZ, Chief Judge United States District Court

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09cv0653