Lemons v. Unknown

Filing 20

AMENDED ORDER (1) adopting Report and Recommendation, (2) denying Petition for Writ of Habeas Corpus, and (3) denying Certificate of Appealability. The action is dismissed with prejudice. Signed by Judge Anthony J. Battaglia on 2/14/12.(All non-registered users served via U.S. Mail Service)(cge)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

WARREN CLAUDIUS LEMONS,

12

Plaintiff,

13

Case No.

AMENDED ORDER: (1) ADOPTING
REPORT AND
RECOMMENDATION, (2)
DENYING PETITION FOR WRIT
OF HABEAS CORPUS, AND (3)
DENYING CERTIFICATE OF
APPEALABILITY

v.

14
15
16

3:10-cv-00807-AJB-CAB

A. HEDGPETH, Warden,
Respondent.

[Doc. 13]

17
18
19
20
21

Presently before the Court is Magistrate Judge Cathy Ann Bencivengo’s Report and
Recommendation (Doc. 13) advising the Court to deny the Petition for Writ of Habeas Corpus.
Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district judge’s

22

duties in connection with a magistrate judge’s report and recommendation. The district judge must

23

“make a de novo determination of those portions of the report to which objection is made,” and

24

“may accept, reject, or modify, in whole or in part, the finding or recommendations made by the

25

magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th

26

Cir. 1989). However, in the absence of timely objection, the Court “need only satisfy itself that there

27

is no clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P.

28

K:\COMMON\BATTAGLI\DJ CASES\2 Orders to be filed\10cv807 Amended Lemons R&R.wpd, 21412

-1-

1

72(b), Advisory Committee Notes (1983); see also United States v. Reyna-Tapia, 328 F.3d 1114,

2

1121 (9th Cir. 2003).

3

Objections were originally due September 30, 2011, but the Court granted an extention until

4

November 11, 2011. However, neither party has filed objections to Magistrate Judge Bencivengo’s

5

report and recommendation. Having reviewed the report and recommendation, the Court finds that it

6

is thorough, well reasoned, and contains no clear error. Accordingly, the Court hereby: (1)

7

ADOPTS Magistrate Judge Bencivengo’s report and recommendation and (2) DENIES the Petition

8

for Writ of Habeas Corpus. The action is DISMISSED WITH PREJUDICE.

9

When a district court enters a final order adverse to the applicant in a habeas proceeding, it

10

must either issue or deny a certificate of appealability. Rule 11(a) of the Rules Governing Section

11

2254 Cases. A certificate of appealability is required to appeal a final order in a habeas proceeding.

12

28 U.S.C. § 2253(c)(1)(A). A certificate of appealability is appropriate only where the petitioner

13

makes “a substantial showing of the denial of a constitutional right.” Miller-El v. Cockrell,

14

537 U.S. 322, 336 (2003). Under this standard, the petitioner must demonstrate that reasonable

15

jurists could debate whether the petition should have been resolved in a different manner or that the

16

issues presented were adequate to deserve encouragement to proceed further. 28 U.S.C. § 2253;

17

Slack v. McDaniel, 529 U.S. 473, 474 (2000). Here, the Court finds that Petitioner has not

18

demonstrated that the reasonable jurists could debate whether the petition should have been resolved

19

differently, and it therefore DENIES a certificate of appealability.

20
21

IT IS SO ORDERED.

22
23

DATED: February 14, 2012

24
Hon. Anthony J. Battaglia
U.S. District Judge

25
26
27
28

K:\COMMON\BATTAGLI\DJ CASES\2 Orders to be filed\10cv807 Amended Lemons R&R.wpd, 21412

-2-