Opinion
Angel Garcia, Petitioner, Pro se, Coalinga, CA.
For Scott Frauenhiem, Warden, Respondent: David Delgado-Rucci, CAAG - Office of the Attorney General, California Department of Justice, San Diego, CA.
ORDER ACCEPTING REPORT AND ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE, AND DENYING CERTIFICATE OF APPEALABILITY
S. JAMES OTERO, UNITED STATES DISTRICT JUDGE.
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition, records on file, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected. The Court accepts the Report and adopts the findings, conclusions, and recommendations of the Magistrate Judge.
The Court notes that the magistrate judge erred when he stated at page 22, lines 6-7, " The jury knew that Petitioner had been convicted of possessing a knife." (Emphasis added.) That sentence should read, " The jury knew that Garcia had been convicted of possessing a knife." With that change, the Court accepts the Report and adopts the magistrate judge's findings, conclusions, and recommendations.
Further, 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 and therefore, a certificate of appealability is denied. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
JUDGMENT
Pursuant to the Order Accepting Report and Adopting Findings, Conclusions, and Recommendations of United States Magistrate Judge, IT IS ADJUDGED that the Petition is denied and this action is dismissed with prejudice.