Opinion
No. LA CV 15-09562-VBF-AS
07-08-2016
DARRYL LAMAR TOLLIVER SR., Petitioner, v. KELLY SANTORO (Warden), Respondent.
ORDER
Denying Petitioner an Evidentiary Hearing; Overruling Petitioner's Objections; Adopting the Report & Recommendation; Denying the Habeas Corpus Petition; Dismissing the Action With Prejudice; Directing Entry of Separate Judgment; Denying a Certificate of Appealability;
Terminating & Closing the Case (JS-6)
Pursuant to 28 U.S.C. § 636(b)(1), the Court has reviewed the Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. section 2254 ("petition") (CM/ECF Document ("Doc") 1); the respondent warden's answer and answer memorandum (Doc 8 and 8-1) and accompanying exhibits (Docs 8-2 through 8-9); materials pertaining to petitioner's August 12, 2013 Chuckawalla Valley State Prison disciplinary conviction for possession of a controlled substance for sale and distribution; petitioner's traverse filed March 17, 2016 (Doc 16); respondent's April 15, 2016 response (Doc 19); petitioner's April 21, 2016 "Notice of Clarification to Traverse" (Doc 20); the Report and Recommendation ("R&R") issued on May 20, 2016 by United States Magistrate Judge Sagar pursuant to Fed. R. Civ. P. 72(b)(1) and 28 U.S.C. § 636(b)(1)(B) (Doc 22); petitioner's timely June 16, 2016 objections to the R&R (Doc 25) and respondent's response thereto (Doc 26); and the applicable law.
By Order issued June 8, 2016, the Magistrate Judge granted petitioner's motion to extend his objection deadline to June 23, 2016. See Docs 23 and 24.
"As required by Fed. R. Civ. P. 72(b)(3), the Court has engaged in de novo review of the portions of the R&R to which petitioner has specifically objected and finds no defect of law, fact, or logic in the . . . R&R." Rael v. Foulk, No. LA CV 14-02987 Doc. 47, 2015 WL 4111295, *1 (C.D. Cal. July 7, 2015) (Fairbank, J.), COA denied, No. LA CV 14-02987 Doc. 53, Appeal No. 15-56205 (9th Cir. Feb. 18, 2016). Accordingly, the Court will accept and implement the Magistrate Judge's findings and recommendations.
ORDER
Petitioner's request for an evidentiary hearing is DENIED.
Petitioner's objection [Doc #25] is OVERRULED.
The Report and Recommendation [Doc #22] is ADOPTED.
The petition for a writ of habeas corpus [Doc #1] is DENIED.
The Court will rule on a certificate of appealability by separate order.
Final judgment will be entered in favor of respondent consistent with this order. "As required by Fed. R. Civ. P. 58(a), the Court will enter judgment by separate document." Toy v. Soto, 2015 WL 2168744, *1 (C.D. Cal. May 5, 2015) (citing Jayne v. Sherman, 706 F.3d 994, 1009 (9th Cir. 2013)) (n.1 omitted), appeal filed, No. 15-55866 (9th Cir. June 5, 2015).
Accord Buck v. American Quarter Horse Ass'n, 602 F. App'x 709, 710 n.1 (10th Cir. 2015) ("[W]e note that the district court did not prepare a separate document entering judgment in accordance with Fed. R. Civ. P. 58(a).").
"'To comply with Rule 58, an order must (1) be selfcontained and separate from the opinion; (2) note the relief granted; and (3) omit or substantially omit the district court's reasons for disposing of the claims.'" Elkins v. Foulkes, 2014 WL 2615732, *14 n.4 (C.D. Cal. June 12, 2014) (quoting Daley v. USAO, 538 F. App'x 142, 143 (3d Cir. 2013) (per curiam) (citation omitted)).
"'A combined document denominated an Order and Judgment, containing factual background, legal reasoning, as well as a judgment, generally will not satisfy the rule's prescription.'" Fisher v. Ventura Cty. Sheriffs Narcotics Agency, 2014 WL 2772705, *7 n.9 (C.D. Cal. June 18, 2014) (quoting In re Taumoepeau, 523 F.3d 1213, 1217 (10th Cir. 2008)) (internal quote marks omitted).
This action is DISMISSED with prejudice.
The case SHALL BE TERMINATED and closed (JS-6). Dated: Friday, July 8, 2016
/s/_________
Valerie Baker Fairbank
Senior United States District Judge