Jackson v. Fox et al

Filing 13

ORDER adopting 12 Report and Recommendation. The Court finds it thorough, well-reasoned, and contains no clear error. Accordingly, the Court: (1) ADOPTS the R & R, (Doc. No. 12); (2) GRANTS Respondent's motion to dismiss, (Doc. No. 9); and (3 ) DISMISSES the Petition WITH PREJUDICE, (Doc. No. 1). The Court finds that reasonable jurists could not debate the Courts conclusion to dismiss with prejudice Petitioner's claims and therefore DECLINES to issue a certificate of appealability. Signed by Judge Anthony J. Battaglia on 2/6/2017. (All non-registered users served via U.S. Mail Service)(acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LEON JACKSON, Case No.: 16-CV-1288-AJB-DHB Petitioner, 12 13 v. 14 ORDER: WARDEN ROBERT FOX, KAMALA HARRIS, 15 16 (1) ADOPTING THE REPORT AND RECOMMENDATION, (Doc. No. 12); (2) GRANTING RESPONDENT’S MOTION TO DISMISS, (Doc. No. 9); Respondents. 17 (3) DISMISSING PETITION FOR WRIT OF HABEAS COPRUS, (Doc. No. 1); AND 18 19 20 (4) DENYING CERTIFICATE OF APPEALABILITY 21 22 23 24 On May 27, 2016, Petitioner Leon Jackson (“Petitioner”), a state prisoner proceeding 25 pro se and in forma pauperis, filed a petition for writ of habeas corpus pursuant to 28 26 U.S.C. § 2254 (“Petition”). (Doc. No. 1.) The Petition seeks relief from Petitioner’s 2012 27 conviction in San Diego Superior Court, Case No. SCE320691, following a jury trial in 28 which Petitioner was found guilty of robbery and was subsequently sentenced to a prison 1 16-CV-1288-AJB-DHB 1 term of nine years. Respondent filed a motion to dismiss on September 12, 2016, (Doc. 2 No. 9), which Petitioner opposed on October 17, 2016, (Doc. No. 11). 3 The Court referred the matter to the Magistrate Judge, who issued a report and 4 recommendation (“R & R”). (Doc. No. 12.) The R & R concluded that Respondent’s 5 motion should be granted. (Id. at 8.) The parties were instructed to file written objections 6 to the R & R no later than January 6, 2017. (Id.) 7 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 8 judge’s duties in connection with a magistrate judge’s report and recommendation. The 9 district judge must “make a de novo determination of those portions of the report . . . to 10 which objection is made,” and “may accept, reject, or modify, in whole or in part, the 11 findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); 12 see United States v. Remsing, 874 F.2d 614, 617–18 (9th Cir. 1989). However, in the 13 absence of timely objections, the Court “need only satisfy itself that there is no clear error 14 on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b) 15 advisory committee’s note (1983); see also United States v. Reyna-Tapia, 328 F.3d 1114, 16 1121 (9th Cir. 2003) (“The statute makes it clear that the district judge must review the 17 magistrate judge’s findings and recommendations de novo if objection is made, but not 18 otherwise.” (emphasis in original)). Here, neither party filed timely objections to the R & 19 R. Having reviewed the R&R, the Court finds it thorough, well-reasoned, and contains no 20 clear error. Accordingly, the Court: (1) ADOPTS the R & R, (Doc. No. 12); (2) GRANTS 21 Respondent’s motion to dismiss, (Doc. No. 9); and (3) DISMISSES the Petition WITH 22 PREJUDICE, (Doc. No. 1). 23 When a district court enters a final order adverse to the applicant in a habeas corpus 24 proceeding, it must either issue or deny a certificate of appealability, which is required to 25 appeal a final order in a habeas corpus proceeding. 28 U.S.C. § 2253(c)(1)(A). A certificate 26 of appealability is appropriate only where the petitioner makes “a substantial showing of 27 the denial of a constitutional right.” Miller-El, 537 U.S. at 327 (quoting 28 U.S.C. § 28 2253(c)(2)). Under this standard, the petitioner must demonstrate that reasonable jurists 2 16-CV-1288-AJB-DHB 1 could debate whether the petition should have been resolved in a different manner or that 2 the issues presented were adequate to deserve encouragement to proceed further. Slack v. 3 McDaniel, 529 U.S. 473, 483–84 (2000). Here, the Court finds that reasonable jurists could 4 not debate the Court’s conclusion to dismiss with prejudice Petitioner’s claims and 5 therefore DECLINES to issue a certificate of appealability. 6 7 IT IS SO ORDERED. 8 9 Dated: February 6, 2017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 16-CV-1288-AJB-DHB

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