1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTONIO MURO, Case No.: 22cv550-LL-LR

12 Petitioner, ORDER: 13 v. (1) ADOPTING REPORT AND 14 CONNIE GIPSON, Warden; et al., RECOMMENDATON 15 Respondents. [ECF No. 28]

16 (2) DENYING FIRST AMENDED 17 PETITION FOR WRIT OF HABEAS CORPUS 18 [ECF No. 1] 19 (3) DECLINING TO ISSUE 20 CERTIFICATE OF 21 APPEALABILITY

22 23 On April 20, 2022, Antonio Muro (“Petitioner”), a California state prisoner 24 proceeding pro se, initiated this matter by filing a First Amended Petition for writ of habeas 25 corpus (“Petition”) pursuant to

. ECF No. 1. Petitioner asserts claims of 26 ineffective assistance of counsel due to counsel’s failure to argue for jury instruction on 27 provocation, and violation of due process rights when the court and counsel finalized jury 28 1 instructions in Petitioner’s absence.

Respondents filed an Answer to the Petition [ECF 2 No. 21] and Petitioner filed a Traverse [ECF No. 27]. 3 On November 15, 2024, United States Magistrate Judge Lupe Rodriguez, Jr. issued 4 a Report and Recommendation (“Report”) recommending that this Court deny the Petition. 5 ECF No. 28. 6 Federal Rule of Civil Procedure 72(b) and

(b)(1) set forth the district 7 court’s duties in connection with a magistrate judge’s report and recommendation. The 8 district court judge must “make a de novo determination of those portions of the report to 9 which objection is made,” and “may accept, reject, or modify, in whole or in part, the 10 findings or recommendations made by the magistrate judge.”

(b)(1); see 11 also United States. v. Raddatz,

, 673–76 (1980); United States v. Remsing, 12

(9th Cir. 1989). However, in the absence of a timely objection, the Court 13 “need only satisfy itself that there is no clear error on the face of the record in order to 14 accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing 15 Campbell v. U.S. Dist. Court,

) (9th Cir. 1974)); see also United States 16 v. Reyna-Tapia,

(9th Cir. 2003) (“[T]he district judge must review 17 the magistrate judge’s findings and recommendations de novo if objection is made, but not 18 otherwise.”). 19 Petitioner was originally granted twenty-eight days to file objections to the Report. 20 ECF No. 28. The Court granted in part Petitioner’s request for additional time, allowing an 21 additional twenty-one days. ECF No. 30. The Court denied Petitioner’s second request for 22 additional time but stated it would consider any objections filed by January 21, 2025. ECF 23 No. 32. No party filed an objection to the Report and the time for doing so has expired. 24 Having reviewed the Report, the Court finds it is thorough, well-reasoned, and contains no 25 clear errors. Therefore, the Court ADOPTS the Report and Recommendation in its entirety. 26 CERTIFICATE OF APPEALABILITY 27 A certificate of appealability must be obtained by a petitioner in order to pursue an 28 appeal from a final order in a § 2254 habeas corpus proceeding. See 28 U.S.C. 1 || § 2253(c)(1)(A); Fed. R. App. P. 22(b). The Rules Following

require the 2 || district court to “issue or deny a certificate of appealability when it enters a final order 3 ||adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A certificate of appealability 4 issue “only if? the petitioner makes a “substantial showing of the denial of a 5 constitutional right.”

(c)(2). A “substantial showing” requires a 6 ||demonstration that “‘reasonable jurists would find the district court’s assessment of the 7 || constitutional claims debatable or wrong.’” Beaty v. Stewart,

(9th Cir. 8 2002) (quoting Slack v. McDaniel,

(2000)). For the reasons set forth in 9 Report and Recommendation and incorporated here, the Court finds this standard has 10 been met, and therefore a certificate of appealability is DENIED. 11 CONCLUSION 12 For the reasons set forth above, the Court ADOPTS the Report and 13 || Recommendation in its entirety and DENIES the Petition. The Court DECLINES to issue 14 |/a certificate of appealability and DIRECTS the Clerk of Court to enter judgment and 15 |} terminate this matter. 16 IT IS SO ORDERED. 17 ||Dated: April 11, 2025 NO 18 QF 19 Honorable Linda Lopez 30 United States District Judge 21 22 23 24 25 26 27 28