The opinion of the court was delivered by: DANA SABRAW, District Judge
ORDER: (1) ADOPTING THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE; (2) DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS; AND (3) DENYING MOTION FOR EVIDENTIARY
Petitioner Robert John Garcia, a state prisoner proceeding pro
se, petitions this Court for writ of habeas corpus pursuant to
28 U.S.C. § 2254. The Honorable Leo S. Papas, United States
Magistrate Judge, has issued a Report and Recommendation ("R&R")
pursuant to 28 U.S.C. § 636(b)(1) and Civ.L.R.HC.2, recommending
that the Court deny Petitioner's writ of habeas corpus. Having
considered all of the relevant pleadings, the applicable law, and
the R&R, the Court adopts Judge Papas' recommendation and
dismisses Petitioner's application for writ of habeas corpus. In
addition, the Court denies Petitioner's motion for an evidentiary
FACTUAL AND PROCEDURAL BACKGROUND
On April 18, 1974, Petitioner was convicted of one count of
first degree murder and one count of second degree murder.
Petitioner was given concurrent sentences. After Petitioner
served a minimum term, he became eligible for parole
consideration. On January 23, 1996, the Board of Prison Terms
conducted a Parole Consideration Hearing and found Petitioner
unsuitable for parole.
On April 5, 2001, Petitioner filed a petition for writ of
habeas corpus with the Superior Court challenging the Board of
Prison Terms' decision. The Superior Court denied the petition on
June 28, 2001.
Petitioner subsequently filed a petition for writ of habeas
corpus with the California Court of Appeal. The Court of Appeal
denied that petition on August 2, 2001.
On September 6, 2001, Petitioner filed a petition for writ of
habeas corpus with the California Supreme Court. On March 27,
2002, the petition was denied.
On June 5, 2002, Petitioner filed a petition for writ of habeas
corpus in the United States District Court for the Central
District of California. On July 2, 2002, the district court
denied the petition without prejudice as a successive petition,
noting that the application before the court was Petitioner's
On November 23, 2004, the Ninth Circuit reversed the decision
of the district court and remanded the case for further
proceedings. (See Garcia v. Woodford, 118 Fed.Appx. 156 (9th
On March 28, 2005, Petitioner's case was transferred from the
United States District Court for the Central District of
California to this court. Thereafter, the current Petition,
Answer, and Traverse were assigned to United States Magistrate
Judge Leo S. Papas. On June 3, 2005, Respondent filed a
Superseding Answer to Petitioner's petition. Petitioner filed a
Supplemental Traverse on June 30, 2005.
On July 11, 2005, the Magistrate issued a R&R, recommending
that this court deny the petition for writ of habeas corpus.
Petitioner filed an objection to the R&R on August 2, 2005.
Subsequently, on August 4, 2005, Petitioner filed a motion for an
evidentiary hearing. II.
REVIEW OF R&R: LEGAL STANDARD
The duty of the district judge regarding the review of an R&R
is set forth in Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1).
Where objections are filed, Section 636(b)(1) directs the
district judge to review de novo "those portions" of the R&R to
which objections have been made. See Hunt v. Pliler,
384 F.3d 1118, 1124-25 (9th Cir. 2004). The district judge may then
accept, reject, or modify, in whole or in part, the magistrate
judge's findings and recommendations. 28 U.S.C. § 636(b)(1).
However, as to those portions of the R&R to which no objections
have been made, the district judge may assume the correctness of
the magistrate judge's findings and recommendations. See U.S. v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) ("the
district judge must review the magistrate judge's findings and
recommendations de novo if objection is made, but not
otherwise.") (emphasis in original). See also Thomas v. Arn,
474 U.S. 140, 149-52 (1985) ("It does not appear that Congress
intended to require district court review of a magistrate's
factual or legal conclusions, under a de novo or any other
standard, when neither party ...