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4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 GAREY LEE SMITH, Case No. EDCV 19-338-MWF (KK) 11 Petitioner, 12 v. ORDER ACCEPTING FINAL FINDINGS AND RECOMMENDATION 13 JOSIE GASTELO, Warden, OF UNITED STATES MAGISTRATE JUDGE 14 Respondent. 15 16 17 Pursuant to

, the Court has reviewed the Petition for a Writ of 18 Habeas Corpus, the records on file, and the Final Report and Recommendation of the 19 United States Magistrate Judge. The Court has engaged in de novo review of those 20 portions of the original Report and Recommendation of the United States Magistrate 21 Judge to which Petitioner has objected. The Court accepts the final findings and 22 recommendation of the Magistrate Judge. 23 In his objections to the original Report and Recommendation of the United 24 States Magistrate Judge, Petitioner also requests an evidentiary hearing. However, in 25 habeas proceedings, “an evidentiary hearing is not required on issues that can be 26 resolved by reference to the state court record.” Totten v. Merkle,

, 27 1176 (9th Cir. 1998); see also Earp v. Ornoski,

(9th Cir. 2005). 1 | record, an evidentiary hearing becomes nothing more than a futile exercise.” Totten, 2 |

. Here, the Magistrate Judge concluded all of Petitioner’s claims 3 | could be resolved by reference to the state court record. Accordingly, the Court 4 | denies Petitioner’s request for an evidentiary hearing. 5 IT IS THEREFORE ORDERED that Judgment be entered (1) denying the 6 | Petition for a Writ of Habeas Corpus; and (2) dismissing this action with prejudice. 7 8 | Dated: March 16, 2020 C ; / Y) Vihey 42, Wee ae ae | 9 MICHAEL W. FITZGERALD] 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28