1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 10 11 DEMETRIUS TERRELL FREEMAN, CASE NO. ED CV 20-00827-DSF(AS) 12 Petitioner, ORDER ACCEPTING FINDINGS, 13 v. CONCLUSIONS AND 14 FELIPE MARTINEZ, Warden, RECOMMENDATIONS OF UNITED 15 STATES MAGISTRATE JUDGE Respondent. 16 17 18 19 20 Pursuant to

, the Court has reviewed the 21 First Amended Petition, the relevant records and the attached Final 22 Report and Recommendation of United States Magistrate Judge. After 23 having made a de novo determination of the portions of the Final 24 Report and Recommendation to which objections were directed,1 the 25 Court concurs with and accepts the findings and conclusions of the 26 1 The Court construes Petitioner’s Motion for Evidentiary 27 Hearing and Judicial Notice (Docket No. 38) as objections to the Final Report and Recommendation. 28 1 Magistrate Judge in the Report and Recommendation. However, the 2 Court addresses certain arguments raised in the objections below. 3 Petitioner seeks an evidentiary hearing to review grand jury 4 materials that he believes will show he did not have an unobstructed 5 6 procedural shot at raising the claim alleged in Ground Two of the 7 First Amended Petition. (Docket No. 38 at 1, 4-5). However, the 8 Magistrate Judge recommended that Ground Two be dismissed without 9 prejudice based on Petitioner’s failure to make a claim of actual 10 innocence and did not address whether Petitioner lacked an 11 unobstructed procedural shot to pursue Ground Two. Therefore, an 12 evidentiary hearing to review grand jury materials is not warranted 13 14 and would not be helpful. 15 16 Petitioner also seeks an evidentiary hearing to challenge the 17 statements made by Yolanda Sanchez regarding Petitioner’s failure 18 to exhaust administrative remedies with respect to Ground 5 of the 19 First Amended Petition. (Docket No. 38 at 1, 2-3). However, 20 Petitioner has failed to cite to any competent evidence that 21 contradicts, refutes, or puts at issue the statements made by 22 23 Yolanda Sanchez concerning Petitioner’s failure to exhaust 24 administrative remedies or the documents relied on in making such 25 statements. Accordingly, Petitioner has failed to establish that 26 an evidentiary hearing is necessary. See Runningeagle v. Ryan, 27

(9th Cir. 2016) (“Where documentary evidence 28 1 provides a sufficient basis to decide a petition, the Court is 2 within its discretion to deny a full hearing.”); see also Howell 3 v. Liddell,

, at *7 (E.D. Cal. Feb. 4, 2021) 4 (evidentiary hearing is warranted when there is a material factual 5 dispute concerning exhaustion of administrative remedies). 6

7 8 IT IS ORDERED that Judgment be entered denying the Petition 9 without prejudice. 10 IT IS FURTHER ORDERED that the Clerk serve copies of this 11 Order, the Magistrate Judge’s Final Report and Recommendation and 12 13 the Judgment on counsel for Petitioner and counsel for Respondent. 14 DATED: June 17, 2021 15 16 ___________ _________ ____ 17 DALE S. FISCHER UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28