Tapia v. Hatton

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATION of United States Magistrate Judge; Granting Respondent's 10 Motion to Dismiss; Dismissing 1 Petition with Prejudice; Declining to Issue Certificate of Appealability. Signed by Judge Michael M. Anello on 8/23/2017.(All non-registered users served via U.S. Mail Service)(ag)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 Petitioner, 10 11 Case No.: 16cv2624-MMA (BLM) LUIS TAPIA, v. ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; S. HATTON, Warden, [Doc. No. 13] 12 13 14 Respondent. GRANTING RESPONDENT’S MOTION TO DISMISS; 15 16 [Doc. No. 10] 17 DISMISSING THE PETITION WITH PREJUDICE; 18 19 [Doc. No. 1] 20 21 DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 22 23 24 25 26 27 28 Petitioner Luis Tapia has filed a Petition for Writ of Habeas Corpus (“petition”) pursuant to 28 U.S.C. § 2254, challenging his conviction for murder in the second degree with the use of a firearm. See Doc. No. 1. Respondent filed a motion to dismiss the petition, which Petitioner filed an opposition to. See Doc. Nos. 10, 12. The matter was referred to United States Magistrate Judge Barbara L. Major for preparation of a Report 1 16cv2624-MMA (BLM) 1 and Recommendation pursuant to Title 28, section 636(b)(1), and Civil Local Rule HC.2. 2 Judge Major has issued a thorough and well-reasoned Report recommending that the 3 motion to dismiss be granted. See Doc. No. 13. 4 Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 5 636(b)(1), the Court must “make a de novo determination of those portions of the report . 6 . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, 7 the findings or recommendations made by the magistrate [judge].” 28 U.S.C. § 8 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). 9 Objections to the Report and Recommendation were due no later than August 18, 2017. 10 To date, no objections have been filed.1 11 Accordingly, the Court finds that Judge Major has issued an accurate Report and 12 well-reasoned recommendation that the Court grant Respondent’s motion to dismiss. The 13 Court ADOPTS the Report and Recommendation in its entirety. The Court GRANTS 14 Respondent’s motion to dismiss, and DISMISSES the petition with prejudice. 15 CERTIFICATE OF APPEALABILITY 16 Rule 11 of the Federal Rules Governing Section 2254 Cases states that “the 17 district court must issue or deny a certificate of appealability when it enters a final order 18 adverse to the applicant.” A certificate of appealability is not issued unless there is “a 19 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 20 Under this standard, a petitioner must show that reasonable jurists could debate whether 21 the petition should have been resolved in a different manner or that the issues presented 22 were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 23 U.S. 322, 336 (2003), quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000). For the 24 reasons set forth in the Report and Recommendation and incorporated by reference 25 26 27 28                                                 1 The Clerk of Court served Petitioner with a copy of the Report and Recommendation via U.S. Mail on July 21, 2017. See Doc. No. 13. 2 16cv2624-MMA (BLM) 1 herein, the Court finds that this standard has not been met and therefore DECLINES to 2 issue a certificate of appealability in this case. 3 The Clerk of Court is instructed to enter judgment accordingly and close the case. 4 IT IS SO ORDERED. 5 6 DATE: August 23, 2017 ____________________________________ HON. MICHAEL M. ANELLO United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 16cv2624-MMA (BLM)

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