Opinion
No. CV 18-00897-JGB (JDE)
01-04-2019
LINHBERGH CARLOS ARCEO, Petitioner, v. STEVE LANGFORD, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition (Dkt. 1), the Memorandum in Support of the Petition (Dkt. 2), the Memorandum in Opposition to the Petition and supporting Declarations (Dkt. 10, 10-1, 10-2), the Traverse (Dkt. 14), the Supplement and supporting Declaration filed by Respondent (Dkt. 16, 16-1), the Response to Respondent's Supplement filed by Petitioner (Dkt. 20), the Report and Recommendation of the United States Magistrate Judge (Dkt. 22), the Objection to the Report filed by Petitioner (Dkt. 24), and the other records on file. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which objections have been made. The Court accepts the findings and recommendation of the Magistrate Judge.
In addition, the Court notes that Petitioner, without citation to authority, requests an evidentiary hearing for the first time in his Objection to the Report. Dkt. 24 at 4. The Court finds that an evidentiary hearing is not warranted. See Anderson v. United States, 898 F.2d 751, 753 (9th Cir. 1990) (per curiam) ("because the record conclusively shows that petitioner is not entitled to habeas corpus under 28 U.S.C. § 2241, no evidentiary hearing was required").
IT IS THEREFORE ORDERED that:
(1) Petitioner's request for an evidentiary hearing is denied; and
(2) Judgment be entered dismissing this action with prejudice. Dated: January 4, 2019
This order is not intended to prejudice any remaining ability Petitioner has to challenge his underlying federal conviction or sentence pursuant to 28 U.S.C. § 2255, although the Court notes that a Section 2255 motion was previously denied by the sentencing court on November 29, 2012. See United States v. Arceo, Case No. CR 09-00616-EJD (N.D. Cal.), Dkts. 53, 60. --------
/s/_________
JESUS G. BERNAL
United States District Judge