Jones v. Marshall

Filing 37

ORDER: Adopting 20 Report and Recommendation of United States Magistrate Judge; Overruling 34 Petitioner's Objections; and Denying 1 Petition for Writ of Habeas Corpus. Having reviewed the Report and Recommendation and the files and reco rds herein, the Court Adopts the Report and Recommendation in its entirety. Accordingly, the Court Denies Petitioner's petition for writ of habeas corpus. For the reasons set forth 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 3/19/2012. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WYDELL D. JONES,

CASE NO. 10 CV 0376 MMA (BGS)
Petitioner,

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ORDER ADOPTING REPORT
AND RECOMMENDATION OF
UNITED STATES MAGISTRATE
JUDGE;

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vs.

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[Doc. No. 20]
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OVERRULING PETITIONER’S
OBJECTIONS;

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[Doc. No. 34]

JOHN MARSHALL, Warden,

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DENYING PETITION FOR WRIT
OF HABEAS CORPUS

Respondent.

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[Doc. No. 1]
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Petitioner Wydell Dupree Jones, a state prisoner proceeding pro se and in forma pauperis,

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filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction

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in San Diego County Superior Court, case number SCD202155. [Doc. No. 1.] Respondent filed

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an answer on April 26, 2010 [Doc. No. 10], and Petitioner filed a traverse on July 19, 2010 [Doc.

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No. 19]. The matter was referred to United States Magistrate Judge Bernard G. Skomal for

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preparation of a Report and Recommendation under 28 U.S.C. § 636(b)(1)(B) and Civil Local

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Rule 72.1(d). Judge Skomal issued his Report on May 31, 2011. [Doc. No. 20.]

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Judge Skomal issued a well-reasoned and thorough Report, forty-six pages in length,

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recommending the petition be denied in its entirety. Petitioner filed lengthy objections with

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supporting exhibits, challenging the findings and conclusions of law set forth in the Report and

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Recommendation. [Doc. No. 34, 36.] Respondent did not file an objection to the Report, nor a

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response to Petitioner’s objections.

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Under 28 U.S.C. § 636(b)(1), in reviewing a magistrate judge’s report and

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recommendation, the district court “shall make a de novo determination of those portions of the

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report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate judge.” Here, Petitioner objects to the

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entirety of the Report. [Doc. No. 34.] Petitioner challenges each of the Magistrate Judge’s

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conclusions, arguing primarily that, “petitioner’s actual claims and contentions have been and are

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being ignored or misrepresented by respondent, and now so by the magistrate court in its denial

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recommendation.” [See, e.g., id. at p.3, 18.] The Court has conducted a de novo review of the

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entire record and considered the merits of each of Petitioner’s objections. With respect to

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Petitioner’s objections to the findings of fact detailed in the Report, the Court overrules the

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objections, as they are amply supported by the record. Contrary to Petitioner’s assertion, Judge

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Skomal’s Report accurately reflects the pertinent facts and proceedings resulting in Petitioner’s

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conviction. Petitioner’s objections to the conclusions of law are similarly without merit, and are

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therefore, overruled. Judge Skomal identified the correct legal standards, applied each standard

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correctly, considered relevant case law, and reached sound conclusions that this Court has no

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reason to reject.

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Having reviewed the Report and Recommendation and the files and records herein, the

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Court ADOPTS the Report and Recommendation in its entirety. Accordingly, the Court DENIES

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Petitioner’s petition for writ of habeas corpus.

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10cv376

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CERTIFICATE OF APPEALABILITY
“The district court must issue or deny a certificate of appealability when it enters a final

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order adverse to the applicant.” Rule 11 foll. 28 U.S.C. § 2254. A petitioner may not seek an

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appeal of a claim arising out of a state court detention unless the petitioner first obtains a

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certificate of appealability from a district judge or circuit judge under 28 U.S.C. § 2253. Fed. R.

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App. Proc. 22(b). Under 28 U.S.C. § 2253(c), a certificate of appealability will issue only if the

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petitioner makes a substantial showing of the denial of a constitutional right.

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For the reasons set forth 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.

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DATED: March 19, 2012
Hon. Michael M. Anello
United States District Judge

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