1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Edward Jesus Elias, Case No.: 3:16-cv-0320-AJB-KSC 12 Petitioner,

ORDER:

13 v. (1) ADOPTING THE REPORT AND RECOMMENDATION (Doc. No. 31), 14 Scott Kernan, Secretary, and 15 Respondent. (2) DISMISSING PETITIONER’S

WRIT OF HABEAS CORPUS

16 (Doc. No. 4) 17 18 Before the Court is Petitioner Edward Jesus Elias’s first amended habeas petition 19 under 28 U.S.C. § 2254. (Doc. No. 4.) The Court referred the petition to the Magistrate 20 Judge for a Report & Recommendation (“R&R). The R&R recommends the Court adopt 21 the R&R’s findings and deny Petitioner’s habeas petition. (Doc. No. 31 at 48.) 22 The duties of the district court with respect to a magistrate’s judge’s R&R are set 23 forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1). The district court 24 must “make a de novo determination of those portions of the report . . . to which objection 25 is made” and “may accept, reject, or modify, in whole or in part, the findings or 26 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United 27 States v. Raddatz, 447 U.S. 667, 676 (1980); United States v. Remsing, 874 F.2d 614, 617– 28 18 (9th Cir. 1989). As to portions of the report to which no objection is made, the Court 1 may assume the correctness of the magistrate judge’s findings of fact and decide the motion 2 on the applicable law. Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974); 3 Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). Under such 4 circumstances, the Ninth Circuit has held that failure to file objections only relieves the 5 trial court of its burden to give de novo review to factual findings; conclusions of law must 6 still be reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1146–47 (9th Cir. 2007). 7 Here, Elias’s 46-page objection essentially attempts to relitigate his habeas petition. 8 (Doc. No. 36.) In his motion, Petitioner fails to make specific objections to the Magistrate 9 Judge’s findings, but rather makes general arguments and rebuttals to the R&R’s 10 conclusions which mirror his petition. For example, in one objection Petitioner argues 11 “there is no evidence that Petitioner committed felony murder and the decision below is an 12 un unreasonable determination of the facts and the laws.” (Id. at 23.) Petitioner summarizes 13 what the magistrate judge found, “[t]he Magistrate found that the jury could draw a 14 reasonable inference that ‘someone’ acted with Chavez to rob and kill the two sailors, 15 because one was shot in the back while there was a struggle next to the driver door.” (Id.) 16 Then Petitioner contends that “the Magistrate is not pointing to actual evidence that 17 Petitioner knew about where the truck came from, knew about, or even was present, at the 18 time of the murders.” (Id.) This mirrors the argument Petitioner made in his first amended 19 petition, which states “[t]here is no evidence Elias was present during the commission of 20 the robbery and killings because Elias’s DNA and fingerprints could have been placed in 21 the truck and at the scene at some other time.” (Doc. No. 4 at 17.) 22 District courts have held that “general objections to an R & R are tantamount to no 23 objection at all.” Sullivan v. Schriro, No. CV–04–1517–PHX–DGC, 2006 WL 15160005, 24 at *1 (D. Ariz. May 30, 2006). This is because general objections would moot the efficiency 25 of the R&R process because “District judges faced with such objections would be forced 26 to conduct de novo review of the entire R & R, duplicating the work of the magistrate 27 judge.” Id. (discussing the statutory purpose of the R&R). This Court has also previously 28 held that when a Petitioner’s objections simply repeat “the arguments made in his 1 || Petition—arguments already analyzed by the magistrate judge in the R&R—the Court is 2 ||relieved of any obligation to review the objection.” Pawlicki v. Paramo; see Thomas v. 3 ||Arn, 474 U.S. 140, 149 (1985) (holding that § 636(b)(1)(C) “does not on its face require 4 review at all, by either the district court or the court of appeals, of any issue that is not 5 || the subject of an objection.”); see also Sullivan, 2006 WL 1516005, at *2 (“Reformatting 6 || the petition as an objection provides this Court with no guidance as to what portions of the 7 || R&R Petitioner considers to be incorrect.”’). 8 Accordingly, the Court overrules Petitioner’s general objections. After reviewing 9 || these objections, the R&R, and Petitioner’s first amended petition, the Court finds the R&R 10 || was well-reasoned, incredibly thorough, and contained no clear error. Accordingly, the 11 |}Court ADOPTS the R&R, (Doc. No. 31), and DISMISSES Petitioner’s first amended 12 || habeas petition, (Doc. No. 4). The Court Clerk is DIRECTED to close the case. 13 When a district court enters a final order adverse to the applicant in a habeas corpus 14 proceeding, it must either issue or deny a certificate of appealability, which is required to 15 appeal a final order in a habeas corpus proceeding. 28 U.S.C. § 2253(c)(1)(A). A certificate 16 of appealability is appropriate only where the petitioner makes “a substantial showing of 17 denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 330 (2003) 18 (quoting 28 U.S.C. § 2253(c)(2)). Under this standard, the petitioner must demonstrate that 19 “reasonable jurists could debate whether [] the petition should have been resolved in a 20 || different manner or that the issues presented were adequate to deserve encouragement to 21 || proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (citation and internal 22 quotation marks omitted). Here, the Court finds that reasonable jurists could not debate the 23 || Court’s conclusion to dismiss with prejudice Petitioner’s claims and therefore DECLINES 24 |! to issue a certificate of appealability. 25 IT IS SO ORDERED. 6 Dated: August 15, 2019 7) rz : LE 27 Hon. Anthony J.Battaglia 28 United States District Judge

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