Opinion
Case No. CV 10-8032 GAF (JCG)
10-17-2011
ALAN O. ABARCA, Petitioner, v. M.D. MCDONALD, 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 Application for Certificate of Appealability ("Application"), Petitioner's "Permission to Incorporate Certificate of Appealability as Written Objection" ("Request"), and the remaining record, and has made a de novo determination.
In the Request, Petitioner asks the Court to consider the arguments made in support of his Application as his objections to the Report and Recommendation. The Court grants Petitioner's Request.
However, the arguments made in the Application generally reiterate the arguments made in the Petition and Reply, and lack merit for the reasons set forth in the Report and Recommendation.
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.
HON. GARY A. FEESS
UNITED STATES DISTRICT JUDGE