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SANCHEZ v. CAREY

United States District Court, S.D. California


September 19, 2005.

VICTOR HUGO SANCHEZ, Petitioner,
v.
TOM L. CAREY, Warden, et al. Respondent.

The opinion of the court was delivered by: NAPOLEON JONES, District Judge

ORDER:

(1) ADOPTING REPORT AND RECOMMENDATION;
(2) GRANTING RESPONDENT'S MOTION TO DISMISS; and
(3) DENYING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE
Currently before the Court is Magistrate Judge Adler's Report and Recommendation ("R&R"), recommending that Respondent's Motion to Dismiss be granted, and that the Petition for Writ of Habeas Corpus ("Petition"), filed pursuant to 28 U.S.C. § 2254, be denied. Petitioner Victor Hugo Sanchez ("Petitioner") did not file any objections to the R&R. The issues presented herein are decided without oral argument. See Civil Local Rule 7.1.d.1. For the reasons set forth below, the Court ADOPTS the R&R in its entirety, GRANTS Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus, and DENIES the Petition for Writ of Habeas Corpus in its entirety. Background Facts

On January 15, 1999, the San Diego Superior Court sentenced Petitioner to seven years in state prison after Petitioner pleaded guilty to assault with a deadly weapon while personally inflicting great bodily injury. (Lodgment No. 1 at 1-3.)

  On August 4, 2000, the San Diego Superior Court denied an appeal by Petitioner because Petitioner had waived his right to appeal and had stipulated to his sentence. (Lodgment No. 5 at 1-2.) On December 1, 2000, the California Court of Appeal denied an appeal by Petitioner because Petitioner had waived his right to appeal. (Lodgment No. 7.)

  In February of 2001, Petitioner apparently sent a letter to the California Court of Appeal regarding his conviction. The California Court of Appeal did not treat the letter as a formal petition, but rather replied to Petitioner by sending a letter stating that Petitioner should have been aware he had stipulated to his seven year sentence. (R&R at 2-3.)

  In August of 2004, Petitioner attempted to file a petition for writ of error coram nobis. (Lodgment No. 8.) The California Supreme Court returned the petition to Petitioner because it had no jurisdiction to grant coram nobis relief. (Lodgment No. 10.)

  On September 30, 2004, Petitioner filed the present Petition in this Court. On January 14, 2005, Respondent filed a Motion to Dismiss, to which Petitioner never filed a Response.

  Discussion

  The duty of a district court in connection with a Magistrate Judge's report and recommendation in habeas cases such as this is set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When objections are made, the Court must make a de novo determination as to those parts objected to. United States v. Raddatz, 447 U.S. 667, 676 (1980). When no objections are filed, the Court may assume the correctness of the Magistrate Judge's findings of fact and decide the motion on the applicable law. Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).

  There being no objections, the Court assumes the correctness of the facts as set forth in the Report and Recommendation. The Court finds, after conducting a de novo review of the magistrate judge's conclusions of law, that the report accurately states and applies the law. The Court ADOPTS the Report and Recommendation in its entirety, GRANTS the motion to dismiss the Petition for Writ of Habeas Corpus, and DENIES the Petition for Writ of Habeas Corpus.

  Conclusion and Order

  For the reasons set forth above, the Court ADOPTS the R&R, GRANTS Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus, and DENIES the Petition for Writ of Habeas Corpus in its entirety.

  IT IS SO ORDERED.

20050919

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