Arellano v. Paramo

Filing 43

ORDER: The Court's 08/06/2018 Order (ECF No. 31 ) is Vacated. It is hereby Ordered that 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 re-enter judgment for Respondent and against Petitioner and close the case. Signed by Judge William Q. Hayes on 01/28/2019. (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,

Case No.: 16-cv-2337-WQH-MDD
Petitioner,

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v.

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ORDER

DANIEL PARAMO,
Respondent.

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HAYES, Judge:

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Before the Court are Petitioner’s objections to the March 12, 2018 Report and

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Recommendation of United States Magistrate Judge Mitchell D. Dembin. (ECF Nos. 39,

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42).

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I.

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On September 13, 2016, Petitioner Raul Arellano filed a Petition for Writ of Habeas

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Corpus (ECF No. 1) (the “Petition”). On March 12, 2018, United States Magistrate Judge

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Mitchell D. Dembin issued a Report and Recommendation recommending the Petition be

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denied because “Petitioner’s four claims are not cognizable for habeas relief under 28

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U.S.C. § 2254.” (ECF No. 15 at 25). On August 6, 2018, having received no objections

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to the March 12, 2018, Report and Recommendation, the Court issued an Order adopting

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the Report and Recommendation and denying the Petition. (ECF No. 31). On October 24,

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2018, the Court granted Petitioner an extension of time to file objections to the Report and

Background

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16-cv-2337-WQH-MDD

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Recommendation. (ECF No. 40). On December 6, 2018, Petitioner filed objections. (ECF

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No. 42).

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II.

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The duties of the district court in connection with a report and recommendation of a

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magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. §

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636(b). The district judge must “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

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part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b).

Ruling of the Court

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After conducting a de novo review of the Report and Recommendation and

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considering the entire file, including Petitioner’s objections, the Court finds that the Report

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and Recommendation correctly determined that the Petition for Writ of Habeas Corpus

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should be denied.

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A certificate of appealability must be obtained by a petitioner in order to pursue an

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appeal from a final order in a section 2254 habeas corpus proceeding. See 28 U.S.C. §

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2253(c)(1)(A); Fed R. App. P. 22(b). Pursuant to Rule 11 of the Federal Rules Governing

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Section 2254 Cases, “[t]he district court must issue or deny a certificate of appealability

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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 “a

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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). It must

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appear that reasonable jurists could find the district court’s assessment of the petitioner’s

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constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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The Court finds that the issues raised by Petitioner in the writ are frivolous. The Court will

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not grant a certificate of appealability

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III.

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The Court’s August 6, 2018 Order (ECF No. 31) is VACATED. IT IS HEREBY

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ORDERED that the Report and Recommendation (ECF No. 15) is adopted in its entirety

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and the Petition for Writ of Habeas Corpus (ECF No. 1) is DENIED. A certificate of

Conclusion

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appealability is DENIED. The Clerk of the Court shall re-enter judgment for Respondent

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and against Petitioner and close the case.

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Dated: January 28, 2019

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