Opinion
CASE NO. 13cv1536-MMA (DHB)
01-30-2015
CLIFFORD PATTERSON, Petitioner, v. JEFFREY BEARD, Secretary of the California Department of Corrections and Rehabilitation, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
[Doc. No. 15]
DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS
[Doc. No. 5]
DECLINING TO ISSUE CERTIFICATE OF APPEALABILIY
Petitioner Clifford Patterson, a state prisoner proceeding pro se, filed a first amended petition for writ of habeas corpus ("petition") pursuant to 28 U.S.C. § 2254, challenging his May 25, 2010 conviction and the resulting sixteen-year sentence for assault with a deadly weapon. See Doc. No. 5. Petitioner raises the following grounds for relief: (1) breach of plea agreement relating to a prior conviction; (2) ineffective assistance of counsel during sentencing of a prior conviction; (3) ineffective assistance of counsel during trial based on the cumulative effective of numerous errors; (4) prosecutorial misconduct; and (5) judicial errors. Respondent answered the Petition. See Doc. No. 12. Petitioner did not file a Traverse.
The matter was referred to United States Magistrate Judge David H. Bartick for preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), and Civil Local Rule HC.2. Judge Bartick issued a thorough and well-reasoned Report recommending the Court deny the petition. See Doc. No. 15.
Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), the Court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). Although the Court granted Petitioner four separate extensions of time to do so, Petitioner has not filed an objection to the Report and Recommendation, and the time to do so has now expired. See Doc. Nos. 17, 19, 23, 27.
The Court notes that it declined Plaintiff's ex parte request for a fifth extension of time to file an objection. See Doc. No. 30. The Court reasoned that because Petitioner had previously received four extensions of time—and therefore had almost six months to file an objection—Petitioner had sufficient time to file an objection and had not demonstrated good cause under Federal Rule of Civil Procedure 6(b) to warrant a further extension of time. See id.
Accordingly, the Court concludes Judge Bartick issued an accurate report and well-reasoned recommendation. The Court ADOPTS the Report and Recommendation in its entirety and DENIES Petitioner's first amended petition with prejudice.
CERTIFICATE OF APPEALABILITY
Rule 11 of the Federal Rules Governing Section 2254 Cases states that "the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability is not issued unless there is "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). For the reasons set forth in the Report and Recommendation and incorporated herein, the Court finds that this standard has not been met and therefore DECLINES to issue a certificate of appealability in this case.
CONCLUSION
Based on the foregoing, the Court ADOPTS the Report and Recommendation in its entirety and DENIES Petitioner's first amended petition with prejudice. The Court further DECLINES to issue a certificate of appealability.
IT IS SO ORDERED. DATED: January 30, 2015
/s/_________
Hon. Michael M. Anello
United States District Judge