ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE;

[Doc. No. 98]

DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS;

[Doc. No. 87]

DENYING PETITIONER‘S MOTIONS FOR EVIDENTIARY HEARING AND DISCOVERY

[Doc. Nos. 95, 97]

Petitioner Romeo Balbin Dumlao, Jr., a state prisoner proceeding pro se, has filed a first amended petition for writ of habeas corpus (“petition“) pursuant to Title 28, United States Code, section 2254, challenging his June 10, 2010 conviction for gross vehicular manslaughter while intoxicated, with sentencing enhancements for infliction of great bodily injury. See Doc. No. 87. Petitioner also requests an evidentiary hearing and leave to conduct discovery. See Doc. Nos. 95, 97. These matters were referred to United States Magistrate Judge Jill L. Burkhardt for preparation of a Report and Recommendation pursuant to Title 28, section 636(b)(1), and Civil Local Rule HC.2. Judge Burkhardt has issued a thorough and well-reasoned Report recommending that all relief requested by Petitioner be denied. See Doc. No. 98. Petitioner objects to the Report and Recommendation on various grounds. See Doc. No. 103.

Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), the Court must “make a de novo determination of those portions of the report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].” 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). The Court has conducted a de novo review of those portions of the Report to which Petitioner objects and finds his objections to be without merit and immaterial to the ultimate resolution of the issues raised in his petition.¹

Accordingly, the Court concludes the Judge Burkhardt issued an accurate Report and well-reasoned recommendation that the petition be denied. The Court OVERRULES Petitioner‘s objections and ADOPTS the Report and Recommendation in its entirety. The Court DENIES the petition with prejudice and DENIES Petitioner‘s motions for an evidentiary hearing and discovery.

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CERTIFICATE OF APPEALABILITY

Rule 11 of the Federal Rules Governing Section 2254 Cases states that “the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A certificate of appealability is not issued unless there is “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000). For the reasons set forth in the Report and Recommendation and incorporated by reference herein, the Court finds that this standard has not been met and therefore DECLINES to issue a certificate of appealability in this case.

The Clerk of Court is instructed to enter judgment accordingly and close the case.

IT IS SO ORDERED.

DATED: March 28, 2016

Hon. Michael M. Anello

United States District Judge

Notes

With respect to Petitioner‘s argument regarding his trial counsel‘s failure to challenge the sentencing enhancements for great bodily injury, Petitioner cites . The Court notes that Weaver was expressly disapproved recently by the California Supreme Court in , in which the court held that under California Penal Code section 12022.7(g), “great bodily injury enhancements simply do not apply to murder or manslaughter.” Id. at 935. At least one state appellate court has applied Cook‘s holding to grant collateral relief and vacate a defendant‘s sentence that included great bodily injury enhancements related to his conviction of vehicular manslaughter while intoxicated, despite the finality of that conviction. See . Petitioner has not challenged his sentence based on the California Supreme Court‘s holding in Cook in these proceedings. As such, it is not for this Court to say whether he would be entitled to any such relief. However, Petitioner may seek relief on these grounds via a writ of habeas corpus in state court. It would, of course, be incumbent on Petitioner to adequately explain and justify his failure to present the claim in his prior state court petitions. See .

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