Opinion
Case No. EDCV 11-01089 GW (AN)
12-28-2011
GLEN EDWARD RUTHERFORD, Petitioner, v. GARY SWARTHOUT, Warden, Respondent.
ORDER ACCEPTING THE FINDINGS
AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the file, including the Magistrate Judge's Report and Recommendation ("R&R") and Petitioner's Objection (dkt. 6). Further, the Court has completed a de novo review of those portions of the R&R to which Petitioner has objected,
IT IS ORDERED that:
1. Petitioner's Objection is overruled for the following reasons. First, all but one of the arguments contained in his written Objection have been addressed and properly rejected in the R&R. In light of Swarthout v. Cooke, 562 U.S. ---, 131 S. Ct. 859 (2011), Petitioner has not established any basis for concluding the California courts' rejection of his federal due process parole claim was contrary to, or involved an unreasonable application of, clearly established Supreme Court law. Second,
Petitioner's new argument that he was not afforded a fair and impartial hearing to the extent he was not immediately given a copy of the district attorney's written opposition to parole is rejected because Petitioner has failed to show any alleged delay in service deprived him of a fair and impartial hearing. (See Objection at 3-4.) Third, Petitioner has not otherwise shown the findings in R&R are legally or factually erroneous.
2. The Court accepts the findings and recommendation of the R&R.
3. Judgment shall be entered denying the Petition and dismissing this action with prejudice.
4. All motions are denied as moot and terminated.
IT IS FURTHER ORDERED that the clerk of the Court shall serve a copy of this Order and the Judgment on all counsel or parties of record.
_____________________
GEORGE H. WU
UNITED STATES DISTRICT JUDGE