Opinion
Case No. CV 10-0071 JVS (JCG)
09-29-2011
TRACY VAUGHN PAUL, II, Petitioner, v. KELLY HARRINGTON, Warden, Respondent.
ORDER ACCEPTING FINDINGS,
CONCLUSIONS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE AND
DENYING CERTIFICATE OF
APPEALABILITY
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records herein, the Report and Recommendation of the United States Magistrate Judge, and Petitioner's "Petition for Rehearing Suggestion for Rehearing En Banc," which the Court construes as Petitioner's Objections to the Report and Recommendation, and has made a de novo determination. The Court accepts the Magistrate Judge's Report and Recommendation.
In his Objections, Petitioner essentially restates the arguments made in support of ground one of the Petition. Those arguments lack merit for the reasons stated in the Report and Recommendation. To the extent that Petitioner's Objections include a request for an evidentiary hearing, Petitioner's request is denied as an evidentiary hearing is not required in this case. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011); Schriro v. Landrigan, 550 U.S. 465, 474 (2007) ("[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.").
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.
Accordingly, having made a de novo determination of those portions of the Report and Recommendation to which objection was made, IT IS ORDERED THAT:
1. Petitioner's request for an evidentiary hearing is denied.
2. Judgment shall be entered dismissing the action with prejudice.
3. The Clerk shall serve copies of this Order and the Judgment herein on the parties.
4. A Certificate of Appealability is denied.
HON. JAMES V. SELNA
UNITED STATES DISTRICT JUDGE