Opinion
Case No. ED CV 11-0713 DMG (JCG)
12-29-2011
WILLIAM ALLEN CARTER, Petitioner, v. F.X CHAVEZ, Warden, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
AND DENYING CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation ("Objections"), and the remaining record, and has made a de novo determination.
Petitioner's Objections generally reiterate the arguments made in the Petition and Reply, and lack merit for the reasons set forth in the Report and Recommendation.
There is one issue, however, that warrants brief amplification here. Petitioner contends that the Magistrate Judge "erred in concluding that no U.S. Supreme Court precedent addresses [Petitioner's] 'jury read back claim,'" and cites to two United States Supreme Court cases. (Obj. at 1.) Upon inspection, neither case addresses whether a criminal defendant has a constitutional right to have testimony read back to the jury.
The two cases cited by Petitioner are Shields v. United States, 273 U.S. 583 (1927) and Bollenbach v. United States, 326 U.S. 607 (1946).
Furthermore, even assuming arguendo that there had been a constitutional violation, any error was harmless for the reasons stated in the Report and Recommendation. (See R&R at 6-7.)
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.
Additionally, for the reasons stated in the Report and Recommendation, 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.
_______________
DOLLY M. GEE
UNITED STATES DISTRICT JUDGE