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Hayes v. Giurbino

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 14, 2008

LAQUAN A. HAYES, PETITIONER,
v.
GEORGE J. GIURBINO, RESPONDENT.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER ADOPTING THE REPORT AND RECOMMENDATION; DENYING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE and DIRECTING ENTRY OF JUDGMENT

Laquan A. Hayes, a pro se state prisoner, seeks a writ of habeas corpus under 28 U.S.C. § 2254. The case was referred to Magistrate Judge Louisa S. Porter for Report and Recommendation ("Report"). The parties were given time in which to file objections to the Report. Neither party has filed objections nor sought an extension of time in which to file objections. Having reviewed the petition and the parties' submissions, the Court enters the following decision.

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). The district court must "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." 28 U.S.C. § 636(b) (1); United States v. Remsing, 874 F.2d 614, 617 (9th Cir.1989); see also Wilkins v. Ramirez, 455 F. 06cv2390 Supp.2d 1080, 1088 (S.D. Cal. 2006). But when neither party objects to a Report and Recommendation, a district court need not review de novo the Report and Recommendation. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005).

After reviewing the Report in its entirety, the Court finds that the magistrate judge correctly concluded that petitioner's lengthy indeterminate sentence under California Penal Code § 667 did not violate clearly established federal law and that the state court did not violate petitioner's Eighth Amendment rights by not treating his conviction offense as a misdemeanor rather than as a felony. (Report at 5-7).

Based on the foregoing, the Court hereby ADOPTS the Magistrate Judge's Report and Recommendation [doc. #8] in its entirety. Petitioner's Petition for Writ of Habeas Corpus is DENIED with prejudice. The Clerk of the Court is directed to enter judgment in accordance with this Order.

IT IS SO ORDERED.

20080114

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