Opinion
CASE NO. ED CV 09-1243-GW (PJW)
07-30-2014
DOUGLAS BRIAN MCSHANE, Petitioner, v. MATTHEW CATE, Respondent.
ORDER ACCEPTING FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND GRANTING IN PART CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition, records on file, and the Final Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which the parties have objected. The Court accepts the findings and recommendation of the Magistrate Judge.
Further, for the reasons stated in the Report and Recommendation, the Court finds that, as to Petitioner's claim that he was prejudiced by trial counsel's ineffective assistance, Petitioner has established that reasonable jurists would find the district court's assessment of Petitioner's constitutional claim was debatable. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 330 (2003). For this reason, a certificate of appealability as to this issue is GRANTED. As to his other claims, Petitioner has not made a substantial showing of the denial of a constitutional right and, therefore, a certificate of appealability is DENIED. See Rules Governing Section 2254 Cases in the United States District Courts, Rule 11(a); 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El, 537 U.S. at 336. DATED: July 30, 2014. /s/_________
GEORGE H. WU
UNITED STATES DISTRICT JUDGE