UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 10, 2007
ANTHONY ALVAREZ, PLAINTIFF,
VICTOR M. ALMAGER, WARDEN, DEFENDANT.
The opinion of the court was delivered by: Hayes, Judge.
ORDER ADOPTING REPORT AND RECOMMENDATION
The matter pending before the court is the review of the Report and Recommendation of Magistrate Judge Jan M. Adler (Doc. # 11), filed June 4, 2007, recommending that Petitioner's Writ of Habeas Corpus be denied without prejudice.
Petitioner Anthony Alvarez seeks habeas relief pursuant to 28 U.S.C. § 2254, challenging his conviction of two counts of first degree residential burglary in state court. Petitioner claims that (1) trial counsel was constitutionally ineffective; (2) the evidence was insufficient to support his conviction; (3) the trial court should have stricken certain prior convictions; (4) California's 'three strikes' law should not have been applied in his case, and (5) his sentence of 60 years to life constitutes cruel and unusual punishment in violation of the Eighth Amendment. (Doc. # 1).
Respondent contends that (1) Petitioner was adequately represented; (2) the evidence supported Petitioner's conviction; (3) the California court's refusal to strike Petitioner's prior convictions raises no federal question; (4) challenges to California's 'three strikes' law have been rejected by the Ninth Circuit and the United States Supreme Court; and (5) the sentence was appropriate given the nature of Petitioner's crimes and Petitioner's criminal record. (Doc.# 6).
On January 18, 2007, Petitioner filed a traverse reaffirming the contentions raised in his Petition for Writ of Habeas Corpus. (Doc. # 10).
On June 4, 2007, Magistrate Judge Adler issued a Report and Recommendation recommending that the District Court deny the Petition without prejudice. (Doc. # 11). The Magistrate Judge concluded that Petitioner's ineffective representation claim centers on his counsel's trial strategy, and that Petitioner failed to show that the representation was objectively unreasonable. The Magistrate Judge also concluded that the evidence supporting Petitioner's conviction was sufficient, and that Petitioner's claim that the trial court should have stricken certain prior convictions did not implicate the federal constitution. Finally, the Magistrate Judge concluded that Petitioner's sentence was not cruel and unusual because Petitioner's sentence was not grossly disproportionate to his crimes in light of Petitioner's serious and lengthy criminal history.
Neither party filed objections to the Report and Recommendation.
STANDARD OF REVIEW
The duties of the district court in connection with a Magistrate Judge's Report and Recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). Where the parties object to a Report and Recommendation, "[a] judge of the [district] court shall make a de novo determination of those portions of the [Report and Recommendation] to which objection is made." 28 U.S.C.A. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). When no objections are filed, the district court need not review de novo the Report and Recommendation. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). When neither party objects to a report and recommendation, a district court may nevertheless, "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006); Or. Natural Desert Ass'n v. Rasmussen, 451 F. Supp. 2d. 1202, 1205 (D. Or. 2006).
CONCLUSION & ORDER
Neither party objected to the Magistrate Judge's Report and Recommendation in this case. Accordingly, and after reviewing the Report and Recommendation in its entirety, the Court finds the Magistrate Judge correctly concluded that Petitioner failed to show that he is entitled to federal habeas relief under the applicable legal standards. The Court adopts the Report and Recommendation (Doc. # 11) in its entirety.
IT IS HEREBY ORDERED that the Report and Recommendation (Doc. # 11) is adopted in its entirety and Petitioner's Writ of Habeas Corpus (Doc. # 1) is denied with prejudice.
IT IS SO ORDERED.
WILLIAM Q. HAYES United States District Judge
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