Opinion
Case No. SA CV 14-0639 AB (JCG)
10-01-2015
MARCOS JAVIER CARDENAS, Petitioner, v. STU SHERMAN, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY AND EVIDENTIARY HEARING
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation ("R&R"), Petitioner's Objections to the R&R, and the remaining record, and has made a de novo determination.
Petitioner's Objections generally reiterate the arguments made in the Petition and Traverse, and lack merit for the reasons set forth in the R&R. There is one issue, however, that warrants brief amplification here.
Namely, Petitioner argues that the harmlessness of the admitted Doyle error at his trial should be evaluated under the "grave doubt" standard articulated in O'Neal v. McAninch, 513 U.S. 432 (1994). (See Objections at 9.) Under O'Neal, in the "unusual" situation in which a reviewing judge has a "grave doubt" about whether an error was harmless - that is, "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error" - then the judge should find that the error had a "substantial and injurious effect or influence in determining the jury's verdict" and grant habeas relief. 513 U.S. at 434.
Here, however, for the reasons articulated in the R&R, no such grave doubt exists, and habeas relief is unwarranted.
Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and accepted;
2. Judgment be entered denying the Petition and dismissing this action with prejudice; and
3. The Clerk serve copies of this Order on the parties.
The Court also construes the Magistrate Judge's May 22, 2014 minute order denying Petitioner's stay request as a Report and Recommendation, and adopts it. --------
Additionally, for the reasons set forth in the R&R, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of appealability.
Nor is Petitioner entitled to an evidentiary hearing. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (AEDPA "requires an examination of the state court-decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time i.e., the record before the state court."). DATED: October 1, 2015
/s/_________
HON. ANDRÉ BIROTTE JR.
UNITED STATES DISTRICT JUDGE