ORDER (1) ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND (2) DENYING HABEAS PETITION, CERTIFICATE OF APPEALABILITY, AND EVIDENTIARY HEARING

S. JAMES OTERO, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition ("FAP"), the Magistrate Judge's Report and Recommendation ("R&R"), Petitioner's Objections to the R&R, and the remaining record, and has made a de novo determination.

Petitioner's Objections reiterate the arguments made in the FAP and Traverse, and lack merit for the reasons set forth in the R&R. There are three issues, however, that warrant brief amplification here.

First, to the extent that Petitioner cites Schlup v. Delo, 513 U.S. 298 (1995), to support his actual innocence claim, (see Objections at 9-10), he references the wrong legal standard. Compare Schlup, 513 U.S at 327-30 (describing standard for gateway actual innocence claim) with Jones v. Taylor, 763 F.3d 1242, 1246-51 (9th Cir. 2014) (describing more demanding standard for freestanding actual innocence claim).

Second, the Court disagrees with Petitioner's characterization of Detective Moreno's testimony regarding the criminal history of certain participants in the photographic line-up used to identify Petitioner. (See Objections at 11; R&R at 11; Reporter's Transcript at 1523-26.)

Third, to the extent that Petitioner seeks to distinguish his case from cases cited by the Magistrate Judge, (see Objections at 4-5, 13), the Court is unpersuaded.

Accordingly, IT IS ORDERED THAT:

1. The Report and Recommendation is approved and accepted;

2. Judgment be entered denying the First Amended Petition and dismissing this action with prejudice; and

3. The Clerk serve copies of this Order on the parties.

Additionally, for the reasons stated in the R&R and above, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of appealability.

Nor is Petitioner entitled to an evidentiary hearing. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) (AEDPA "requires an examination of the state court-decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time i.e., the record before the state court.").