Delealv.Clark

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIANov 27, 2019
Case No. 19cv522-MMA (NLS) (S.D. Cal. Nov. 27, 2019)

Case No. 19cv522-MMA (NLS)

11-27-2019

RUDY DELEAL, Petitioner, v. KEN CLARK, Warden, Respondent.


ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

[Doc. Nos. 1, 8]

Petitioner Rudy Deleal ("Petitioner"), a state prisoner, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254, challenging his San Diego Superior Court conviction for driving under the influence of a drug causing injury in case number SCD265087. Doc. No. 1 at 2. Respondent filed an answer, arguing that Petitioner's petition fails on the merits and lodged the court records. Doc. No. 6; Doc. No. 7. Petitioner was provided with the opportunity to file a traverse by July 10, 2019, Doc. No. 4 at 2, but has failed to do so to date. The matter was referred to United States Magistrate Judge Nita L. Stormes for preparation of a Report and Recommendation pursuant to Title 28, section 636(b)(1), and Civil Local Rule HC.2. Judge Stormes has issued a thorough and well-reasoned Report recommending that the Petition be denied. See Doc. No. 8.

Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), the Court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). Objections to the Report and Recommendation were due no later than November 6, 2019. Doc. No. 8 at 18. To date, no objections have been filed. See Docket.

The Court finds that Judge Stormes has issued an accurate Report and well-reasoned recommendation that the Petition be denied. The Court ADOPTS the Report and Recommendation in its entirety. Accordingly, Court DENIES the Petition with prejudice.

CERTIFICATE OF APPEALABILITY

Rule 11 of the Federal Rules Governing Section 2254 Cases states that "the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability is not issued unless there is "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). / / / / / / / / / / / / / / / / / /

For the reasons set forth in the Report and Recommendation and incorporated by reference herein, the Court finds that this standard has not been met and therefore DECLINES to issue a certificate of appealability in this case.

The Court ORDERS the Clerk of Court to enter judgment accordingly and close the case.

IT IS SO ORDERED. Dated: November 27, 2019

/s/_________

Hon. Michael M. Anello

United States District Judge