1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 KEVIN TYRONE FLEMINGS, Case No.: 19cv944-JAH (AGS)

11 Petitioner, ORDER ADOPTING THE 12 v. MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION; 13 COVELLO, Warden, DISMISSING PETITION FOR WRIT 14 Respondent. OF HABEAS CORPUS; AND DENYING CERTIFICATE OF 15 APPEALABILITY 16 17 INTRODUCTION 18 Petitioner Kevin Tyrone Flemings (“Petitioner”), a state prisoner proceeding pro se, 19 filed a writ of habeas corpus (“Petitioner”) under

. Doc. No. 9. Respondent 20 Covello (“Respondent”) filed an answer and supporting memorandum of points and 21 authorities. Doc. No. 15. The case was referred to United States Magistrate Judge Andrew 22 G. Schopler for a Report and Recommendation (“Report”) pursuant to

636(b)(1). Doc. No. 17. Judge Schopler’s Report recommended dismissing the petition in 24 its entirety, and denying the issuance of a Certificate of Appealability. Petitioner did not 25 file an objection to the Report. After careful consideration of the entire record, and for the 26 reasons set forth below, the Court ADOPTS Judge Schopler’s Report; DISMISSES the 27 instant petition in its entirety; and DENIES issuing a Certificate of Appealability. 28 /// 1 BACKGROUND 2 In 1998, Petitioner was sentenced to 280 years to life for multiple state offenses. 3 Doc. No. 9 at 1-2; Doc. No. 15-2 at 2. In 2016, Proposition 57 passed and added the 4 following language to the California Constitution: “Any person convicted of a nonviolent 5 felony offense and sentenced to state prison shall be eligible for parole consideration after 6 completing the full term for his or her primary offense.” Cal. Const. art. I, § 32(a)(1). 7 Petitioner applied for such consideration, however, California Department of Corrections 8 and Rehabilitation (“CDCR”) denied his application as his convictions were deemed 9 violent offenses. Petitioner appealed the decision to the CDCR and was denied by each of 10 the three appellate divisions. Doc. No. 9 at 13-16. 11 DISCUSSION 12 The district court’s role in reviewing a magistrate judge’s report and 13 recommendation is set forth in

(b)(1). Under this statute, the court “shall 14 make a de novo determination of those portions of the report…to which objection is made,” 15 and “may accept, reject, or modify, in whole or in part, the findings or recommendations 16 made by the magistrate judge.”

As to the portions of the report to which no objection is 17 made, the court may assume the correctness of the magistrate judge’s findings of fact and 18 decide the motion on the applicable law. See Wang v. Masaitis,

, 1000 n. 13 19 (9th Cir. 2005) (stating that “de novo review of a [report] is only required when an 20 objection is made”); United States v. Reyna-Tapia,

(9th Cir. 2003) 21 (en banc) (holding that

(b)(1)(c) “makes it clear that the district judge must 22 review the magistrate judge’s findings and recommendations de novo if objection is made, 23 but not otherwise.”). 24 Petitioner filed the instant petition challenging the CDRC’s decision. Doc. No. 9. 25 Petitioner alleges he is entitled to habeas relief because the CDCR improperly found him 26 to be a violent offender under California—therefore excluding him from the Proposition 27

28 1 The underlying facts set forth in the report are adopted in toto and referenced as if fully set forth herein. The Court provides 1 57 parole consideration. Judge Schopler filed a Report and Recommendation, wherein 2 which Petitioner was provided 14 days to file any objections. Doc. No. 17. To date, Petition 3 has not filed any objections to the Report. See Docket. Accordingly, the Court finds that 4 Judge Schopler has issued an accurate Report and well-reasoned recommendation that the 5 Petition be dismissed. The Court ADOPTS the Report in its entirety. The Court 6 DISMISSES the Petition with prejudice. 7 CERTIFICATE OF APPLICABILITY 8 Petitioner requests the issuance of a Certificate of Appealability. Pursuant to Rule 9 11 of the Federal Rules governing

, a “district court must issue or deny a 10 certificate of appealability when it enters a final order adverse to the applicant.” A state 11 prisoner may not appeal the denial of a section 2254 habeas petition prior to obtaining a 12 certificate of appealability from a circuit justice or judge.

(c)(1)(A); see 13 also United States v. Asrar,

(9th Cir. 1997) (holding that district 14 courts retain authority to issue certificates of appealability under AEDPA). A certificate of 15 appealability is authorized “if the applicant has made a substantial showing of the denial 16 of a constitutional right.”

(c)(2). To meet this threshold, a petitioner must 17 show that: (1) the issues are debatable among jurists of reason, (2) that a court could resolve 18 the issues in a different manner, or (3) that the questions are adequate to deserve 19 encouragement to proceed further. Lambright v. Stewart,

(9th Cir. 20 2000) (citations omitted). 21 Based on this Courts review of the Report, and the entire record in this matter, the 22 Court finds no reasonable jurists would find it debatable that Petitioner has failed to show 23 an entitlement to federal habeas corpus relief. Petitioner has not made the requisite 24 substantial showing of the denial of a constitutional right. Accordingly, Petitioner’s 25 application for a Certificate of Appealability is DENIED. 26 /// 27 /// 28 /// 1 CONCLUSION AND ORDERED 2 For the reasons set forth above, IT IS HEREBY ORDERED: 3 1. The Magistrate Judge’s Report is ADOPTED in its entirety; 4 2. The instant petition is DISMISSED WITH PREJUDICE; 5 3. Petitioner is DENIED a Certificate of Appealability. 6 IT IS SO ORDERED. 7 8 9 DATED: May 15, 2020 10 Hgn. John A. Houston 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28