Paul Hupp v. Warden

Case 5:21-cv-01670-RSWL-MAR Document 49 Filed 03/13/23 Page 1lof3 Page ID #:1107 1 'o' 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 12 PAUL HUPP, EDCV 21-1670-RSWL-MAR 13 Petit; ORDER ACCEPTING FINDINGS CEPETONSE AND RECOMMENDATIONS OF 14 vy UNITED STATES MAGISTRATE □ JUDGE [30]; AND DENYING 15 CERTIFICATE OF APPEALABILIT WARDEN, Respondent.

19 Pursuant to 28 U.S.C. § 636, the Court has reviewed 50 the Petition for Writ of Habeas Corpus (“Petition”) [1], 54 records on file herein, and the Report and 59 Recommendation of the United States Magistrate Judge 53 [30]. Further, as required by Federal Rule of Civil DA Procedure 72(b) (3), the Court has engaged in de novo 55 review of the portions of the Report and Recommendation 26 to which Petitioner specifically has objected [48].

A. The Petition 27 — 28 Petitioner’s objections lack merit for the reasons Case 5:21-cv-01670-RSWL-MAR Document 49 Filed 03/13/23 Page 2 of 3 Page ID #:1108 stated in the Report and Recommendation. Having considered the Petition [1], Respondent’s Answer to the Petition (“Answer”) [22], the papers filed in connection with the Answer [24, 29], and Petitioner’s Objections to the Report and Recommendation [48], the Court finds no defect of law, fact, or logic in the Report and Recommendation. To be clear, Petitioner has no state remedies available to him and his claim is procedurally barred. See Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). Furthermore, Petitioner cannot overcome the procedural default because his ineffective assistance of counsel claim is meritless. See Carter v. Ryan, No. CV 17-04105-PHX-DGC (MHB), 2019 U.S. Dist. LEXIS 143781, at *20 (D. Ariz. Aug. 22, 2019). Therefore, the Petition is DENIED.

16 B. The Certificate of Appealability 17 Under the Antiterrorism and Effective Death Penalty Act of 1996, a state prisoner seeking to appeal a district court’s final order in a habeas corpus proceeding must obtain a Certificate of Appealability (“COA”) from the district judge or a circuit judge. 28 22 U.S.C. § 2253(c)(1)(A). A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate Case 5:21-cv-01670-RSWL-MAR Document 49 Filed 03/13/23 Page 3 of 3 Page ID #:1109 to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

3 Here, reasonable jurists could not debate the Court’s ruling that Petitioner’s claims are procedurally defaulted. Therefore, the CAO is DENIED.

7 Accordingly, IT IS ORDERED THAT: 8 1. Petitioner’s objections are overruled; and 9 2. The Report and Recommendation of the Magistrate 10 Judge is accepted; and 11 3. The Certificate of Appealability is denied; and 12 4. Judgment is entered denying the Petition and 13 dismissing this Action with prejudice.

15 IT IS SO ORDERED.

17 DATED: March 13, 2023 /s/Ronald S.W. Lew ________ HONORABLE RONALD S.W. LEW Senior U.S. District Judge