Opinion
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
JOHN F. WALTER, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation ("Objections"), and the remaining record, and has made a de novo determination.
Petitioner's Objections generally parrot and rehash the arguments made in the Petition and Reply, and lack merit for the reasons set forth in the Report and Recommendation.
There is one issue, however, that warrants brief amplification here. Petitioner challenges the California Supreme Court's factual finding that "law enforcement could not' bring Petitioner to" his trial on the same day that he was - apprehended. (Obj. at 5.) Specifically, Petitioner claims that there is "no competent evidence in the record that shows that Petitioner could not be brought to court." ( Id. (emphasis in original).)
Petitioner is wrong. As Petitioner acknowledges, the trial court clearly stated, on the record, that a "Sergeant" advised the court that Petitioner could not be brought to court that day. (RT at 126-127.) Petitioner makes much of the fact that the "Sergeant" did not testify at trial, and that instead, the information "came from an ex parte conversation between the judge and the Sergeant'...." ( See Obj. at 5-6.) But Petitioner fails to cite any authority, nor is the Court aware of any, that required the Court to take the "Sergeant's" testimony on this issue.
And in any event, Petitioner falls far short of meeting his burden to rebut the California Supreme Court's finding with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (In a habeas proceeding, "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.") Other than speculative and conclusory statements about what law enforcement could have done, Petitioner fails to provide the Court with any basis upon which to conclude that the California Supreme Court's finding was incorrect.
Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and adopted;
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.