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Moeller v. Gilbert

United States District Court, Ninth Circuit

September 25, 2013

DAVID DOUGLAS MOELLER, Petitioner,
v.
MARGARET GILBERT, Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION

ROBERT J. BRYAN, District Judge.

This matter comes before the Court on the Report and Recommendation of the Magistrate Judge. Dkt. 18. The court has considered the relevant documents and the remainder of the file herein.

On August 27, 2013, Magistrate Judge J. Richard Creatura issued a Report and Recommendation (Dkt. 18), recommending that Petitioner's habeas corpus petition (Dkt. 7) be denied and that a certificate of appealability also be denied. Petitioner has not filed any objections.

The court has reviewed the record de novo. The court concurs with the Magistrate Judge's thorough and careful analysis of Petitioner's claims. Five of the six grounds for relief are procedurally barred. The remaining ground is without merit because petitioner had the ability to cross-examine the witness and his right to confrontation was not violated. The state court's adjudication did not: (1) result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court; or (2) result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. ยง2254(d). Accordingly, the Report and Recommendation (Dkt. 18) should be adopted and Petitioners' habeas corpus petition should be denied.

Moreover, a certificate of appealability should be denied.

Therefore, it is hereby

ORDERED that the court ADOPTS the Report and Recommendation (Dkt. 18); Petitioner's habeas corpus petition (Dkt. 7) is DENIED; and a certificate of appealability is DENIED.

The Clerk is directed to send uncertified copies of this Order to all counsel of record, to any party appearing pro se at said party's last known address, and to the Hon. J. Richard Creatura.


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