Millan

Millan v. MARSHAL

Good Law

677 F. Supp. 2d 1217·2009 WL 4277245·2009 U.S. Dist. LEXIS 110654

United States District Court, Central District of CaliforniaNovember 28, 2009Case CV 09-0740-JFW(RC)California1,816 words

Opinion

Walter, J.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. Section 636 , the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner’s request to withdraw his petition, and has made a de novo determination.

IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) respondent’s motion to dismiss the habeas corpus petition is granted, and Judgment shall be entered dismissing the petition without prejudice.

This Court finds the appeal is not taken in good faith, and petitioner has not made a substantial showing that he has been denied a constitutional right and that this Court was not correct in its procedural rulings, for the reasons set forth in the Report and Recommendation. Accordingly, a certificate of appealability should not issue under 28 U.S.C. § 2253 (c)(2) and Fed. R.App. P. 22(b). Slack v. McDaniel, 529 U.S. 473, 483 , 120 S.Ct. 1595, 1604 , 146 L.Ed.2d 542 (2000); Jones v. Smith, 231 F.3d…

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