Opinion
Case No.: 18cv274-MMA (RBM)
02-11-2019
LABRONE CARLOS HARRIS, Petitioner, v. SCOTT KERNAN, Secretary of the California Department of Corrections and Rehabilitation Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
[Doc. No. 12]
DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS; AND
[Doc. No. 4]
DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
Petitioner Labrone Carlos Harris, a state prisoner proceeding pro se, has filed a First Amended Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, challenging his convictions for corporal injury to a spouse with infliction of great bodily injury and assault by means likely to produce great bodily injury, with infliction of great bodily injury. Doc. No. 4; see Doc. No. 10-11 at 2. Respondent filed an answer to the Petition. Doc. No. 9. Petitioner did not file a traverse. See Docket. The matter was referred to United States Magistrate Judge Ruth Bermudez Montenegro for preparation of a Report and Recommendation pursuant to Title 28, section 636(b)(1), and Civil Local Rule HC.2. Doc. No. 11. Judge Montenegro has issued a thorough and well-reasoned Report recommending that the Petition be denied. See Doc. No. 12.
Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), the Court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). Objections to the Report and Recommendation were due no later than December 28, 2018. Doc. No. 12 at 18. To date, no objections have been filed. See Docket.
Accordingly, the Court finds that Judge Montenegro 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.
CERTIFICATE OF APPEALABILITY
Rule 11 of the Federal Rules Governing Section 2254 Cases states that "the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability is not issued unless there is "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Under this standard, a petitioner must show 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. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000). 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.
IT IS SO ORDERED. Dated: February 11, 2019
/s/_________
Hon. Michael M. Anello
United States District Judge