1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHARLES TRAYZON GILBERT, Case No.: 21-CV-859 JLS (DEB) 12 Petitioner,

ORDER (1) ADOPTING REPORT

13 v. AND RECOMMENDATION ON

PETITION FOR WRIT OF HABEAS

14

CORPUS; (2) GRANTING

15 MARCUS POLLARD, Warden, RESPONDENT’S MOTION TO 16 Respondent. DISMISS; (3) DENYING FIRST

AMENDED PETITION FOR WRIT

17 OF HABEAS CORPUS; AND (4) DENYING CERTIFICATE OF 18

APPEALABILITY

19 (ECF Nos. 4, 6, 10) 20 21 22 Presently before the Court is Petitioner Charles Trayzon Gilbert’s First Amended 23 Petition for Writ of Habeas Corpus (“FAP,” ECF No. 4), as well as Respondent Marcus 24 Pollard, Warden’s, Motion to Dismiss the Amended Petition for Writ of Habeas Corpus 25 (“MTD,” ECF No. 6) and Petitioner’s Traverse thereto (ECF No. 7). Magistrate Judge 26 Daniel E. Butcher has issued a Report and Recommendation advising the Court to grant 27 Respondent’s MTD and enter judgment in favor of Respondent (“R&R,” ECF No. 10). No 28 Party filed objections to the R&R. Having considered the FAP, Judge Butcher’s R&R, the 1 pleadings and all supporting documents, and the law, the Court ADOPTS Judge Butcher’s 2 R&R in its entirety, GRANTS Respondent’s MTD, DENIES the FAP, and DENIES 3 Petitioner a certificate of appealability (“COA”). 4 BACKGROUND 5 Judge Butcher’s R&R contains an accurate recitation of the relevant background and 6 evidence. See R&R at 1–2. This Order incorporates by reference the background as set 7 forth therein. 8 LEGAL STANDARD 9 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 10 court’s duties in connection with a magistrate judge’s R&R. The district court must “make 11 a de novo determination of those portions of the report or specified proposed findings or 12 recommendations to which objection is made,” and “may accept, reject, or modify, in 13 whole or in part, the findings or recommendations made by the magistrate judge.” 28 14 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673–76 (1980); United 15 States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely 16 objection, the Court “need only satisfy itself that there is no clear error on the face of the 17 record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s 18 note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)). 19 ANALYSIS 20 No party filed timely objections to the R&R. See R&R at 5–6 (providing that any 21 party may file objections on or before January 13, 2022). The Court therefore reviews the 22 R&R for clear error. 23 The R&R concludes that (i) the Court lacks federal habeas jurisdiction because the 24 relief sought would not “necessarily lead to [Petitioner’s] immediate or earlier release from 25 confinement,” R&R at 3–4 (quoting Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016)); 26 and (ii) Petitioner’s claim involves the interpretation or application of state law and is 27 therefore not cognizable on federal habeas review, id. at 4 –5 (citations omitted). 28 / / / l The Court finds no clear error in the R&R. Accordingly, the Court ADOPTS the 2 || R&R, GRANTS Respondent’s MTD; and DENIES Petitioner’s FAP. 3 CERTIFICATE OF APPEALABILITY 4 The Court also is obliged to determine whether to issue a COA in this proceeding. 5 ||A COA is authorized “if the applicant has made a substantial showing of the denial of a 6 || constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the 7 || constitutional claims on the merits, . . . [t]he petitioner must demonstrate that reasonable 8 ||jurists would find the district court’s assessment of the constitutional claims debatable or 9 wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When “the district court denies a 10 ||habeas petition on procedural grounds without reaching the prisoner’s underlying 11 constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of 12 ||reason would find it debatable whether the petition states a valid claim of the denial of a 13 constitutional right and that jurists of reason would find it debatable whether the district 14 court was correct in its procedural ruling.” Jd. 15 Because the Court finds that no reasonable jurist would find it debatable whether the 16 || Court was correct in its determination that Petitioner is not entitled to federal habeas corpus 17 ||relief, the questions presented by the Petition do not warrant further proceedings. 18 || Accordingly, the Court DENIES a COA. 19 CONCLUSION 20 In light of the foregoing, the Court ADOPTS the R&R (ECF No. 10); GRANTS 21 ||Respondent’s Motion to Dismiss (ECF No. 6); and DENIES the First Amended Petition 22 ||(ECF No. 4). The Court further DENIES a Certificate of Appealability. The Clerk of the 23 ||Court SHALL ENTER Judgment denying the First Amended Petition and SHALL 24 || CLOSE the file. 25 IT IS SO ORDERED. 26 Dated: January 18, 2022 . tt f te 7 on. Janis L. Sammartino 38 United States District Judge

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