Burnett v. Smelosky

Filing 20

ORDER Adopting 19 Report and Recommendations; and Denying 3 First Amended Petition for Writ of Habeas Corpus. The Court concludes that the magistrate judge issued an accurate report and well-reasoned recommendation that the instant petition be de nied. Accordingly, the Court adopts the Report and Recommendation in its entirety and denies Petitioner's first amended petition for writ of habeas corpus. For the reasons set forth in detail in the Report and Recommendation, Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action. Signed by Judge Michael M. Anello on 11/29/2010. (All non-registered users served via U.S. Mail Service)(leh)

-AJB Burnett v. Smelosky

Doc. 20

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 MICHAEL A. SMELOSKY, Warden, et al., Defendant. vs. ESTER BURNETT, Plaintiff, ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; [Doc. No. 19] DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS [Doc. No. 3] Petitioner Ester Burnett, a state prisoner proceeding pro se and in forma pauperis, filed a first amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. No. 3], challenging the outcome of a prison disciplinary proceeding which resulted in the forfeiture by Petitioner of ninety days of good time credit. Respondent filed an answer to the petition [Doc. No. 15], and Petitioner filed a traverse [Doc. No. 18]. The matter is currently before the Court for review of the Report and Recommendation issued by United States Magistrate Judge Anthony J. Battaglia recommending that the petition be denied [Doc. No. 19]. Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), the Court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations -109cv2681

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

CASE NO. 09cv2681-MMA (AJB)

Dockets.Justia.com

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made by the magistrate [judge]." 28 U.S.C. § 636(b) (1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). When no objections are filed, as is the case here, a district court may assume the correctness of the magistrate judge's factual findings and decide the motion on the applicable law. Johnson v. Nelson, 142 F.Supp.2d 1215, 1217 (S.D.Cal. 2001) (citing Campbell v. United States District Court, 501 F.2d 196, 206 (9th Cir. 1989)) The Court concludes that the magistrate judge issued an accurate report and well-reasoned recommendation that the instant petition be denied. Accordingly, the Court ADOPTS the Report and Recommendation in its entirety and DENIES Petitioner's first amended petition for writ of habeas corpus. CERTIFICATE OF APPEALABILITY "The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11 foll. 28 U.S.C. § 2254. A petitioner may not seek an appeal of a claim arising out of a state court detention unless the petitioner first obtains a certificate of appealability from a district judge or circuit judge under 28 U.S.C. § 2253. Fed. R. App. Proc. 22(b). Under 28 U.S.C. § 2253(c), a certificate of appealability will issue only if the petitioner makes a substantial showing of the denial of a constitutional right. For the reasons set forth in detail in the Report and Recommendation, Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action. IT IS SO ORDERED. DATED: November 29, 2010 Hon. Michael M. Anello United States District Judge

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09cv2681