Arellano v. Paramo

Filing 31

ORDER: The Report and Recommendation (ECF No. 15 ) is adopted in its entirety and the Petition for Writ of Habeas Corpus (ECF No. 1 ) is Denied. A certificate of appealability is Denied. The Clerk of the Court shall enter judgment for Respondent and against Petitioner and close the case. Signed by Judge William Q. Hayes on 08/06/2018. (All non-registered users served via U.S. Mail Service)(ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAUL ARELLANO,

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Petitioner,
v.
DANIEL PARAMO, WARDEN,
Respondent.

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CASE NO. 16-cv-2337-WQH-MDD
ORDER

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HAYES, Judge:
The matter before the Court is the review of the Report and Recommendation
issued by United States Magistrate Judge recommending that the Petition for Writ of
Habeas Corpus filed by the Petitioner be denied. (ECF No. 15).
On June 12, 2018, the Court ordered Petitioner to file any objections to the
Report and Recommendation by July 23, 2018. (ECF No. 30). No objections have
been filed.
The duties of the district court in connection with a report and recommendation
of a magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28
U.S.C. § 636(b). The district judge 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 made by the magistrate.”
28 U.S.C. § 636(b). The district court need not review de novo those portions of a
Report and Recommendation to which neither party objects. See Wang v. Masaitis, 416
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16cv2337-WQH-MDD

1 F.3d 992, 1000 n.13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121
2 (9th Cir. 2003) (en banc) (“Neither the Constitution nor the [Federal Magistrates Act]
3 requires a district judge to review, de novo, findings and recommendations that the
4 parties themselves accept as correct.”).
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The Court has reviewed the Report and Recommendation, the record, and the

6 submissions of the parties. The Court finds that the Magistrate Judge correctly
7 recommended that the Petition for Writ of Habeas Corpus filed by the Petitioner be
8 denied.
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A certificate of appealability must be obtained by a petitioner in order to pursue

10 an appeal from a final order in a section 2254 habeas corpus proceeding. See 28 U.S.C.
11 § 2253(c)(1)(A); Fed R. App. P. 22(b). Pursuant to Rule 11 of the Federal Rules
12 Governing Section 2254 Cases, “[t]he district court must issue or deny a certificate of
13 appealability when it enters a final order adverse to the applicant.”
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A certificate of appealability should be issued only where the petition presents

15 “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
16 It must appear that reasonable jurists could find the district court’s assessment of the
17 petitioner’s constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
18 484 (2000). The Court finds that the issues raised by Petitioner in the writ are frivolous.
19 The Court will not grant a certificate of appealability.
20 Conclusion
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IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 15)

22 is adopted in its entirety and the Petition for Writ of Habeas Corpus (ECF No. 1) is
23 denied. A certificate of appealability is DENIED. The Clerk of the Court shall enter
24 judgment for Respondent and against Petitioner and close the case.
25 DATED: August 6, 2018
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WILLIAM Q. HAYES
United States District Judge

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16cv2337-WQH-MDD