Muro v. Gipson

Opinion

ANTONIO MURO, Case No.: 22cv550-LL-LR

Petitioner, ORDER: v. (1) ADOPTING REPORT AND CONNIE GIPSON, Warden; et al., RECOMMENDATON Respondents. [ECF No. 28]

(2) DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS [ECF No. 1] (3) DECLINING TO ISSUE CERTIFICATE OF

On April 20, 2022, Antonio Muro (“Petitioner”), a California state prisoner proceeding pro se, initiated this matter by filing a First Amended Petition for writ of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner asserts claims of ineffective assistance of counsel due to counsel’s failure to argue for jury instruction on provocation, and violation of due process rights when the court and counsel finalized jury instructions in Petitioner’s absence. Id. Respondents filed an Answer to the Petition [ECF No. 21] and Petitioner filed a Traverse [ECF No. 27]. On November 15, 2024, United States Magistrate Judge Lupe Rodriguez, Jr. issued a Report and Recommendation (“Report”) recommending that this Court deny the Petition. ECF No. 28. Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth the district court’s duties in connection with a magistrate judge’s report and recommendation. The district court judge 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. Raddatz, 447 U.S. 667, 673–76 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of a timely objection, the Court “need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206) (9th Cir. 1974)); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he district judge must review the magistrate judge’s findings and recommendations de novo if objection is made, but not otherwise.”). Petitioner was originally granted twenty-eight days to file objections to the Report. ECF No. 28. The Court granted in part Petitioner’s request for additional time, allowing an additional twenty-one days. ECF No. 30. The Court denied Petitioner’s second request for additional time but stated it would consider any objections filed by January 21, 2025. ECF No. 32. No party filed an objection to the Report and the time for doing so has expired. Having reviewed the Report, the Court finds it is thorough, well-reasoned, and contains no clear errors. Therefore, the Court ADOPTS the Report and Recommendation in its entirety. A certificate of appealability must be obtained by a petitioner in order to pursue an appeal from a final order in a § 2254 habeas corpus proceeding. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). The Rules Following 28 U.S.C. § 2254 require the district court to “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A certificate of appealability issue “only if? the petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial showing” requires a demonstration that “‘reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’” Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). For the reasons set forth in Report and Recommendation and incorporated here, the Court finds this standard has been met, and therefore a certificate of appealability is DENIED. For the reasons set forth above, the Court ADOPTS the Report and Recommendation in its entirety and DENIES the Petition. The Court DECLINES to issue /a certificate of appealability and DIRECTS the Clerk of Court to enter judgment and } terminate this matter. Dated: April 11, 2025 NO QF Honorable Linda Lopez United States District Judge