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United States District Court, S.D. California

September 20, 2005.

STUART ROSS, Petitioner,

The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge

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.


  I. Legal Standard

  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. 1983)).

  II. Analysis

  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 instant petition.


  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 shall enter judgment in accordance with this Order.

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