Opinion
Case No. CV 10-5637 FMO (JCG)
10-28-2013
BOBBY ARELLANES, Petitioner, v. FERNANDO GONZALEZ, 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 First Amended Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation, and the remaining record, and has made a de novo determination.
Petitioner's Objections generally reiterate the arguments made in the First Amended Petition and Traverse, and lack merit for the reasons set forth in the Report and Recommendation.
Furthermore, to the extent that Petitioner's Objections include a request for an evidentiary hearing, Petitioner's request is denied. 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.").
Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and accepted;
2. Judgment be entered denying the First Amended 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.
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HON. FERNANDO M. OLGUIN
UNITED STATES DISTRICT JUDGE