Opinion
Case No. CV 13-4232-JVS (KK)
02-19-2015
OTIS FITZGERALD ERVIN, Petitioner, v. SOTO, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Amended Petition for a Writ of Habeas Corpus, the records on file, and both the original and final Report and Recommendation of the United States Magistrate Judge. The Court has engaged in a de novo review of those portions of the original Report to which Petitioner has objected. The Court accepts the findings and recommendation of the Magistrate Judge.
In his objections to the original Report, Petitioner also requests an evidentiary hearing. However, in habeas proceedings, "an evidentiary hearing is not required on issues that can be resolved by reference to the state court record." Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998); see also Earp v. Ornoski, 431 F.3d 1158, 1173 (9th Cir. 2005). "It is axiomatic that when issues can be resolved with reference to the state court record, an evidentiary hearing becomes nothing more than a futile exercise." Totten, 137 F.3d at 1176. Here, the Magistrate Judge concluded all of Petitioner's claims could be resolved by reference to the state court record. Accordingly, the Court denies Petitioner's request for an evidentiary hearing.
IT IS THEREFORE ORDERED that Judgment be entered (1) denying the Amended Petition for a Writ of Habeas Corpus; and (2) dismissing this action with prejudice. Dated: February 19, 2015
/s/_________
HONORABLE JAMES V. SELNA
UNITED STATES DISTRICT JUDGE