Watson v. Brazelton et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION; granting Respondent's Motion to Dismiss and Dismissing Petition; declining to issue Certificate of Appealability. Signed by Judge Anthony J. Battaglia on 2/6/15.(All non-registered users served via U.S. Mail Service)(cge)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 Khary B. Watson, 13 CASE NO. 14cv2174 AJB (BLM) Petitioner, 14 15 v. [Doc. No. 10] 16 GRANTING RESPONDENT’S MOTION TO DISMISS AND DISMISSING PETITION; 17 18 19 20 ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; Paul Brazelton, et al., [Doc. No. 8] Respondent. DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 21 22 Petitioner Khary B. Watson, a state prisoner proceeding pro se and in forma 23 pauperis, filed a petition for writ of habeas corpus (“petition”) pursuant to 28 U.S.C. 24 § 2254. [Doc. No. 1.] Petitioner challenges his conviction of first degree murder, and 25 Respondent moved to dismiss. [Doc. No. 8.] The matter was referred to United States 26 Magistrate Judge Barbara L. Major for preparation of a Report and Recommendation 27 pursuant to 28 U.S.C. § 636(b)(1), and Civil Local Rule HC.2. Judge Major issued a 28 well-reasoned and thorough Report recommending the Court grant Respondent’s -1- 14cv2174 1 motion to dismiss. [Doc. No. 10.] 2 Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. 3 § 636(b)(1), the Court must “make a de novo determination of those portions of the 4 report . . . to which objection is made,” and “may accept, reject, or modify, in whole or 5 in part, the findings or recommendations made by the magistrate [judge].” 28 U.S.C. 6 § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). No 7 objections have been filed. 8 Accordingly, the Court concludes the magistrate judge issued an accurate report 9 and well-reasoned recommendation that the petition be denied. The Court ADOPTS 10 the Report and Recommendation in its entirety and GRANTS the motion to dismiss. 11 12 CERTIFICATE OF APPEALABILITY Rule 11 of the Federal Rules Governing Section 2254 Cases states that “the 13 district court must issue or deny a certificate of appealability when it enters a final 14 order adverse to the applicant.” A certificate of appealability is not issued unless there 15 is “a substantial showing of the denial of a constitutional right.” 28 U.S.C. 16 § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could 17 debate whether the petition should have been resolved in a different manner or that the 18 issues presented were adequate to deserve encouragement to proceed further. Miller-El 19 v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 20 (2000)). 21 For the reasons set forth in the Report and Recommendation and incorporated 22 by reference herein, the Court finds that this standard has not been met and therefore 23 DECLINES to issue a certificate of appealability in this case. 24 The Clerk of Court is instructed to close the case. 25 IT IS SO ORDERED. 26 DATED: February 6, 2015 27 28 Hon. Anthony J. Battaglia U.S. District Judge -2- 14cv2174

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