Cowan v. Gastelo
Filing
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ORDER: The Report and Recommendation (ECF No. 13 ) is Adopted in its entirety and the Petition for Writ of Habeas Corpus (ECF No. 1 ) is Denied. A certificate of appealability is Granted. The Clerk of the Court shall enter judgment for Respondent and against Petitioner and close the case. Signed by Judge William Q. Hayes on 11/27/2018. (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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ERIC JEFFREY COWAN,
Case No.: 17cv1994-WQH-BLM
Plaintiff,
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v.
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ORDER
JOSIE GASTELO,
Defendants.
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HAYES, Judge:
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The matter before the Court is the review of the Report and Recommendation (ECF
No. 13) issued by the United States Magistrate Judge.
I.
BACKGROUND
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On August 31, 2018, the United States Magistrate Judge issued the Report and
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Recommendation concluding that the Petitioner was not entitled to relief on any grounds
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set forth in the Petition for Writ of Habeas Corpus and recommending that this court direct
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judgment be entered. (ECF No. 13).
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On October 29, 2018, Petitioner filed objections to the Report and Recommendation.
(ECF No. 16).
II.
LEGAL STANDARD
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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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17cv1994-WQH-BLM
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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).
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III.
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. The Court adopts the Report and Recommendation in its entirety.
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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 § 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 Petitioner has raised non-frivolous arguments. The Court grants a
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certificate of appealability.
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IV.
CONCLUSION
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IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 13) is
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adopted in its entirety and the Petition for Writ of Habeas Corpus (ECF No. 1) is denied.
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A certificate of appealability is GRANTED. The Clerk of the Court shall enter judgment
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for Respondent and against Petitioner and close the case.
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Dated: November 27, 2018
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17cv1994-WQH-BLM
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