Hernandez v. Clayton et al

Filing 73

Order: (1) Adopting the Report and Recommendation, (Doc. No. 72 ); (2) Denying Petitioner's First Amended Petition for Writ of Habeas Corpus, (Doc. No. 7 ); and (3) Denying Certificate of Appealability. Signed by Judge Anthony J. Battaglia on 12/11/2019. (All non-registered users served via U.S. Mail Service)(jrm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LARRY HERNANDEZ,

Case No.: 16-cv-02460-AJB-LL
Petitioner,

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ORDER:

v.
SCOTT KERNAN,

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(1) ADOPTING THE REPORT
AND RECOMMENDATION, (Doc.
No. 72);

Respondent.

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(2) DENYING PETITIONER’S FIRST
AMENDED PETITION FOR WRIT
OF HABEAS CORPUS, (Doc. No. 7);
AND

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(3) DENYING CERTIFICATE OF
APPEALABILITY

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Presently before the Court is Petitioner Larry Hernandez’s (“Petitioner”) first

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amended petition for writ of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (Doc.

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No. 7.) Respondent filed an answer to the Petition. (Doc. No. 15). Petitioner did not file a

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traverse. The Court referred the matter to the Honorable Linda Lopez, Magistrate Judge,

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who issued a Report and Recommendation (“R&R”) recommending the Court deny the

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Petition. (Doc. No. 72.) The parties were instructed to file written objections by April 19,

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2019, and replies by May 10, 2019. (Id. at 29.)

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district
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16-cv-02460-AJB-LL

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

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district judge must “make a de novo determination of those portions of the report . . . to

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which objection is made,” and “may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C);

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see also United States v. Remsing, 874 F.2d 614, 617–18 (9th Cir. 1989). However, in the

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absence of timely objections, the Court “need only satisfy itself that there is no clear error

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on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b)

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advisory committee’s note (1983); see also United States v. Reyna-Tapia, 328 F.3d 1114,

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1121 (9th Cir. 2003).

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Here, neither party timely filed objections to Magistrate Judge Lopez’s R&R.

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Having reviewed the R&R, the Court finds that Magistrate Judge Lopez’s R&R is

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thorough, well-reasoned, and contains no clear error.

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Accordingly, the Court hereby (1) ADOPTS Magistrate Judge Lopez’s R&R, (2)

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DENIES the Petition on the merits, and (3) DECLINES to issue a certificate of

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appealability.1 The Court Clerk is DIRECTED to close the case.

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IT IS SO ORDERED.

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Dated: December 11, 2019

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When a district court enters a final order adverse to the applicant in a habeas proceeding,
it must either issue or deny a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A). A
certificate of appealability is required to appeal a final order in a habeas proceeding. See
id. A certificate of appealability is appropriate only where the petitioner makes “a
substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2); Miller-El v.
Cockrell, 537 U.S. 322, 326 (2003). Under this standard, the petitioner must demonstrate
that “reasonable jurists could debate whether . . . the petition should have been resolved in
a different manner or that the issues presented were ‘adequate to deserve encouragement
to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 474 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 & n.4 (1983)).
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