Opinion
Case No. ED CV 16-0293 ODW (AFM)
08-05-2016
TERRY HOLMES, Petitioner, v. NEIL McDOWELL, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file and the Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which objections have been made. Petitioner's objections are overruled.
In addition, petitioner's requests for an evidentiary hearing and for appointment of counsel to assist him in seeking a Certificate of Appealability are denied. See Totten v. Merkle, 137 F.3d 1172, 1174-75 (9th Cir. 1998) (an evidentiary hearing is not required on issues that can be resolved by reference to the state court record); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (appointment of counsel in a federal habeas proceeding depends on likelihood of success on the merits, as well as ability of petitioner to articulate his claims pro se).
The Court accepts the findings and recommendations of the Magistrate Judge. IT THEREFORE IS ORDERED that (1) the Report and Recommendation of the Magistrate Judge is accepted and adopted; and (2) Judgment shall be entered denying the Petition and dismissing the action with prejudice. DATED: August 5, 2016
/s/_________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE