Shears v. Spearman

Filing 19

ORDER Adopting 18 Report and Recommendation of United States Magistrate Judge; Denying 1 Petition for Writ of Habeas Corpus; Denying 17 Request for Evidentiary Hearing; Declining to Issue Certificate of Appealability. The Court finds that Jud ge Major has issued an accurate Report and well-reasoned recommendation that the petition be denied. The Court adopts the Report and Recommendation in its entirety. The Court denies the petition with prejudice and denies Petitioner's request for an evidentiary hearing. A certificate of appealability is not issued unless there is "a substantial showing of the denial of a constitutional right." For the reasons set forth in the Report and Recommendation and incorporated by reference herein, the Court finds that this standard has not been met and therefore declines to issue a certificate of appealability in this case. The Clerk of Court is instructed to enter judgment accordingly and close the case. Signed by Judge Michael M. Anello on 3/6/2018. (All non-registered users served via U.S. Mail Service)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17cv0559 MMA (BLM)

CHARZEL P. SHEARS,
Petitioner,

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v.

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ORDER ADOPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE;

M.E. SPEARMAN, Warden,

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Respondent.

[Doc. No. 18]

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DENYING PETITION FOR WRIT
OF HABEAS CORPUS;

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[Doc. No. 1]

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DENYING REQUEST FOR
EVIDENTIARY HEARING;

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[Doc. No. 17]

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DECLINING TO ISSUE
CERTIFICATE OF
APPEALABILITY

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Petitioner Charzel Shears (“Petitioner”), a state prisoner proceeding pro se, has

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filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his

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conviction for first degree murder and two counts of premeditated attempted murder. See

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Doc. No. 1. Respondent filed an answer to the petition. See Doc. No. 13. Petitioner
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17cv0559 MMA (BLM)

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filed a traverse. See Doc. No. 17. The matter was referred to United States Magistrate

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Judge Barbara L. Major for preparation of a Report and Recommendation pursuant to

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Title 28, section 636(b)(1), and Civil Local Rule HC.2. Judge Major has issued a

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thorough and well-reasoned Report recommending that the petition be denied. See Doc.

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No. 18.

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Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. §

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636(b)(1), the Court must “make a de novo determination of those portions of the report .

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

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the findings or recommendations made by the magistrate [judge].” 28 U.S.C. §

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636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

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Objections to the Report and Recommendation were due no later than February 23, 2018.

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To date, no objections have been filed.1

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Accordingly, the Court finds that Judge Major has issued an accurate Report and

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well-reasoned recommendation that the petition be denied. The Court ADOPTS the

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Report and Recommendation in its entirety. The Court DENIES the petition with

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prejudice and DENIES Petitioner’s request for an evidentiary hearing.

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CERTIFICATE OF APPEALABILITY

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Rule 11 of the Federal Rules Governing Section 2254 Cases states that “the

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district court must issue or deny a certificate of appealability when it enters a final order

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adverse to the applicant.” A certificate of appealability is not issued unless there is “a

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

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Under this standard, a petitioner must show that reasonable jurists could debate whether

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the petition should have been resolved in a different manner or that the issues presented

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were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537

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U.S. 322, 336 (2003), quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000). For the

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The Clerk of Court served Petitioner with a copy of the Report and Recommendation via U.S.
Mail on January 26, 2018. See Doc. No. 18.
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17cv0559 MMA (BLM)

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reasons set forth in the Report and Recommendation and incorporated by reference

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herein, the Court finds that this standard has not been met and therefore DECLINES to

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issue a certificate of appealability in this case.

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The Clerk of Court is instructed to enter judgment accordingly and close the case.

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IT IS SO ORDERED.

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DATED: March 6, 2018

_______________________________
HON. MICHAEL M. ANELLO
United States District Judge

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17cv0559 MMA (BLM)