1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 D’MARE ATTE FRANKLIN, Case No.: 18cv2788-AJB-LL

12 Petitioner, ORDER: 13 v. (1) ADOPTING REPORT AND 14 RALPH DIAZ, RECOMMENDATION, (Doc. No. 15), 15 Respondent. (2) DENYING PETITION, (Doc. No. 16 1), AND 17 (3) DENYING CERTIFICATE OF 18 APPEALABILITY 19 20 Presently before the Court is Petitioner D’Mare Atte Franklin’s (“Petitioner”) 21 petition for writ of habeas corpus (“Petition”) pursuant to

. (Doc. No. 1.) 22 Respondent Ralph Diaz (“Respondent”) filed an answer to the Petition, (Doc. No. 10), and 23 Petitioner filed a traverse. (Doc. No. 12.) The Court referred the matter to the Honorable 24 Linda Lopez, Magistrate Judge, who issued a Report and Recommendation (“R&R”) 25 recommending the Court deny the Petition. (Doc. No. 15.) The parties were instructed to 26 file written objections by August 20, 2019, and replies by September 10, 2019. (Id. at 21.) 27 Federal Rule of Civil Procedure 72(b) and

(b)(1) set forth a district 28 judge’s duties in connection with a magistrate judge’s report and recommendation. The 1 || district judge must “make a de novo determination of those portions of the report . . . to 2 || which objection is made,” and “may accept, reject, or modify, in whole or in part, the 3 findings or recommendations made by the magistrate judge.”

(b)(1)(C); 4 || see also United States v. Remsing,

(9th Cir. 1989). However, in the 5 absence of timely objections, the Court “need only satisfy itself that there is no clear error 6 ||on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b) 7 || advisory committee’s note (1983); see also United States v. Reyna-Tapia,

(9th Cir. 2003). 9 Neither party timely filed objections to Magistrate Judge Lopez’s R&R. Having 10 ||reviewed the R&R, the Court finds Magistrate Judge Lopez’s R&R is thorough, well- 11 |/reasoned, and contains no clear error. 12 Accordingly, the Court hereby (1) ADOPTS Magistrate Judge Lopez’s R&R, (2) 13 || DENIES the Petition on the merits, and (3) DECLINES to issue a certificate of 14 || appealability.' The Court Clerk is DIRECTED to close the case. 15 16 || IT IS SO ORDERED. Dated: October 2, 2019 Q Itz : ZZ. 18 Hon. Anthony J.Battaglia 19 United States District Judge 20 2] 22 ||! When a district court enters a final order adverse to the applicant in a habeas proceeding, 93 ||1t must either issue or deny a certificate of appealability. See

(c)(1)(A). A certificate of appealability is required to appeal a final order in a habeas proceeding. See 24 A certificate of appealability is appropriate only where the petitioner makes “a 95 substantial showing of the denial of a constitutional right.” Jd. § 2253(c)(2); Miller-El v. Cockrell,

(2003). Under this standard, the petitioner must demonstrate 26 || that “reasonable jurists could debate whether . . . the petition should have been resolved in 97 ||a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel,

(2000) (quoting Barefoot v. 28 || Estelle,

, 893 & n.4 (1983).

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