The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND
DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, a state prisoner proceeding pro se, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging on ex post facto grounds the five-year parole denial
at his June 14, 2001 parole consideration hearing before the
California Board of Prison Terms. Respondent moves to dismiss the
petition on the ground that it is time-barred under
28 U.S.C. § 2244(d)(1)(D). Pursuant to 28 U.S.C. § 636(b)(1), the Honorable
Anthony J. Battaglia, submitted a report and recommendation
("Report") to this Court recommending the respondent's motion to
dismiss be GRANTED. Objections to the report were due by July 15,
2005, but neither party filed objections. After careful
consideration of the pleadings and relevant exhibits submitted by
the parties, and for the reasons set forth below, this Court
ADOPTS the magistrate judge's Report in its entirety and GRANTS
respondent's motion to dismiss. BACKGROUND
Petitioner is a state inmate serving an indeterminate life term
pursuant to an April 4, 1992, second degree murder conviction.
Report at 1. The petitioner's habeas corpus petition challenges
his five-year parole denial based on SB 826, which increased the
time period between parole consideration hearings to a maximum of
five years from a maximum of three years. Report at 1. Petitioner
argues that because SB 826 was enacted in 1994, after he
committed his crime, it unlawfully increased the punishment for
his crime in violation of Ex Post Facto Clause. Report at 1.
Petitioner did not file an administrative appeal challenging
the denial of parole by the California Board of Prison Terms.
Report at 2. Petitioner commenced his state habeas proceedings by
filing a petition in San Diego Superior Court on September 5,
2002. Report at 2. The California Supreme Court denied his habeas
petition on November 12, 2003. Report at 2.
Petitioner filed the instant petition for writ of habeas corpus
on November 4, 2004. Report at 2. Respondent filed a motion to
dismiss the petition on February 3, 2005. Mtn. at 1. Petitioner
filed an opposition to respondent's motion to dismiss on March
30, 2005. Opp. at 1. The magistrate judge's Report was filed on
June 21, 2005. Report at 1. No objections to the Report were
filed by either party.
The district court's role in reviewing a Magistrate Judge's
report and recommendation is set forth in 28 U.S.C. § 636(b)(1).
Under this statute, the district court "shall 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]." Id. 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); Johnson v. Nelson, 142 F. Supp. 2d 1215,
1217 (S.D. Cal. 2001). 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.
The Court received no objections to the Report and no request
for an extension of time in which to file any objections. As
such, the Court assumes the correctness of the magistrate judge's
factual findings and adopts them in full. The Court has conducted
a de novo review, independently reviewing the Report and all
relevant papers submitted by both parties, and finds that the
Report provides a cogent analysis of the claims presented in the
For the reasons set forth above, IT IS HEREBY ORDERED that:
1. The findings and conclusions of the magistrate
judge presented in the Report and Recommendation are
ADOPTED in their entirety;
2. The instant petition is DISMISSED with prejudice
as time-barred; and
3. The Clerk of Court ...