Deleal v. Clark ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RUDY DELEAL, Case No. 19cv522-MMA (NLS) 12 Petitioner, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; 14 KEN CLARK, Warden, DENYING PETITION FOR WRIT 15 Respondent. OF HABEAS CORPUS; AND DECLINING TO ISSUE 16 CERTIFICATE OF 17 APPEALABILITY 18 [Doc. Nos. 1, 8] 19 20 21 Petitioner Rudy Deleal (“Petitioner”), a state prisoner, has filed a Petition for Writ 22 of Habeas Corpus pursuant to 28 U.S.C. §2254, challenging his San Diego Superior 23 Court conviction for driving under the influence of a drug causing injury in case number 24 SCD265087. Doc. No. 1 at 2. Respondent filed an answer, arguing that Petitioner’s 25 petition fails on the merits and lodged the court records. Doc. No. 6; Doc. No. 7. 26 Petitioner was provided with the opportunity to file a traverse by July 10, 2019, Doc. No. 27 4 at 2, but has failed to do so to date. The matter was referred to United States Magistrate 28 Judge Nita L. Stormes for preparation of a Report and Recommendation pursuant to Title 1 28, section 636(b)(1), and Civil Local Rule HC.2. Judge Stormes has issued a thorough 2 and well-reasoned Report recommending that the Petition be denied. See Doc. No. 8. 3 Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 4 636(b)(1), the Court must “make a de novo determination of those portions of the report 5 . . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, 6 the findings or recommendations made by the magistrate [judge].” 28 U.S.C. § 7 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). 8 Objections to the Report and Recommendation were due no later than November 6, 2019. 9 Doc. No. 8 at 18. To date, no objections have been filed. See Docket. 10 The Court finds that Judge Stormes has issued an accurate Report and well- 11 reasoned recommendation that the Petition be denied. The Court ADOPTS the Report 12 and Recommendation in its entirety. Accordingly, Court DENIES the Petition with 13 prejudice. 14 CERTIFICATE OF APPEALABILITY 15 Rule 11 of the Federal Rules Governing Section 2254 Cases states that “the 16 district court must issue or deny a certificate of appealability when it enters a final order 17 adverse to the applicant.” A certificate of appealability is not issued unless there is “a 18 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 19 Under this standard, a petitioner must show that reasonable jurists could debate whether 20 the petition should have been resolved in a different manner or that the issues presented 21 were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 22 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 For the reasons set forth in the Report and Recommendation and incorporated by 2 ||reference herein, the Court finds that this standard has not been met and therefore 3 || DECLINES to issue a certificate of appealability in this case. 4 The Court ORDERS the Clerk of Court to enter judgment accordingly and close 5 case. 6 IT IS SO ORDERED. 7 8 || Dated: November 27, 2019 9 Mikula (lille 10 Hon. Michael M. Anello United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28