Opinion
Case No. LA CV 14-05319 VBF(JC)
10-21-2015
FRANCISCO VASQUEZ, Petitioner, v. MARTIN BITER, Respondent.
ORDER Overruling Petitioner's Objections; Adopting the United States Magistrate Judge's Report & Recommendation; Denying the Habeas Corpus Petition; Dismissing the Action with Prejudice
Pursuant to 28 U.S.C. § 636, the Court has reviewed the habeas corpus petition (CM/ECF Document ("Doc") 1), respondent's answer (Doc 14), the transcripts, briefs, and other "lodged documents" from the California state courts (listed in Doc 15), the well-reasoned Report and Recommendation of the U.S. Magistrate Judge ("R&R") (Doc 17), petitioner's objections and application for a certificate of appealability (Doc 23), and the applicable law. The Court has made a de novo determination of those portions of the R&R to which petitioner has specifically objected.
The Objections are attached as Exhibit A to Petitioner's Application for Certificate of Appealability. (Docket No. 23).
Petitioner is not entitled to an evidentiary hearing because he has not alleged any material fact which he did not have a full and fair opportunity to develop in state court and which, if proved, would show his entitlement to habeas relief. See Cullen v. Pinholster, -- U.S. --, 131 S. Ct. 1388, 1398 (2011) (the section § 2254(d)(1) inquiry is limited to the record that was before state court that adjudicated claim on the merits); Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if record refutes petitioner's factual allegations or otherwise precludes relief, an evidentiary hearing is not required); Gandarela v. Johnson, 286 F.3d 1080, 1087 (9th Cir. 2002) (evidentiary hearing properly denied where petitioner "failed to show what more an evidentiary hearing might reveal of material import"). --------
ORDER
Petitioner's objections [Doc #23] are OVERRULED.
The Magistrate Judge's Report & Recommendation [Doc #17] is ADOPTED.
The habeas corpus petition is DENIED.
The Court will rule on a certificate of appealability by separate order.
Finally, the Court will direct entry of judgment in favor of the respondent and against petitioner consistent with this order and with the R&R. As required by Fed. R. Civ. P. 58(a), the judgment will be entered by separate document.
This action is dismissed with prejudice and TERMINATED. DATED: October 21, 2015
/s/_________
VALERIE BAKER FAIRBANK
Senior United States District Judge