Opinion
No. CV 13-01898-GW (VBK)
01-06-2015
ALBERTO HERNANDEZ, Petitioner, v. SCOTT FRAUENHEIM, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. §636, the Court has reviewed the Petition for Writ of Habeas Corpus ("Petition"), the records and files herein, and the Report and Recommendation of the United States Magistrate Judge ("Report"). Further, the Court has engaged in de novo review of those portions of the Report to which Petitioner has objected.
The Court makes the following changes to the Report:
Page 10, line 19: change "motivate" to "motivating."
Page 15, line 23: change the word "if" to "of."
Page 16, line 19: change "clearly established" to "'clearly established'".
Page 19, line 17: change "(9th Cir.)" to "(9th Cir. 2013)."
Page 22, line 21: delete the ellipses.
Page 34, line 12: add opening quotation mark before "because."
Page 38, line 9: delete "Johnson," leaving only "Coleman."
Page 43, line 9: delete the word "under".
IT IS ORDERED that: (1) the Court accepts the findings and recommendations of the Magistrate Judge, and (2) the Court declines to issue a Certificate of Appealability ("COA"). DATED: January 6, 2015
Under 28 U.S.C. §2253(c)(2), a COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." The Supreme Court has held that, to obtain a Certificate of Appealability under §2253(c), a habeas petitioner must show that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further'." Slack v. McDaniel, 52 9 U.S. 473, 483-84, 120 S.Ct. 1595 (2000)(internal quotation marks omitted); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029 (2003). After review of Petitioner's contentions herein, this Court concludes that Petitioner has not made a substantial showing of the denial of a constitutional right, as is required to support the issuance of a COA.
/s/_________
GEORGE H. WU
UNITED STATES DISTRICT JUDGE