Opinion
Case No. SA CV 14-1290 BRO (JCG)
06-05-2015
ERWIN JOHNNY SANCHEZ, Petitioner, v. DUCART, Warden, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY AND EVIDENTIARY HEARING
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, and the remaining record, and has made a de novo determination. No objections to the Report and Recommendation have been filed.
Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and accepted;
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 set forth 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.
Nor is Petitioner entitled to an evidentiary hearing. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (AEDPA "requires an examination of the state court-decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time i.e., the record before the state court."). DATED: June 5, 2015
/s/_________
HON. BEVERLY REID O'CONNELL
UNITED STATES DISTRICT JUDGE