UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
June 11, 2008
CHRISTOPHER BERLIN ROBERTS, PETITIONER,
STEVEN CAMBRA, JR., INTERIM DIRECTOR, RESPONDENT.
The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER (1) ADOPTING REPORT AND RECOMMENDATION, AND (2) GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION FOR LEAVE TO AMEND
Petitioner, Christopher Berlin Roberts, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. By order filed April 11, 2007, the court construed Petitioner's Declaration of Abandonment of Unexhausted Claims as a motion for leave to amend his petition by adding exhausted claims. The case was referred to United States Magistrate Judge Louisa S. Porter for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d).
On February 15, 2008, the Magistrate Judge issued a Report and Recommendation, recommending to deny Petitioner's motion for leave to amend with respect to all claims except for claim no. 6, which alleged that Petitioner's sentence to life in prison without possibility of parole constituted a cruel and unusual punishment under the circumstances of his case.
On February 25, 2008, Petitioner filed a request for an extension of time to file objections to the report and recommendation. By order dated March 3, 2008, the court granted Petitioner's request, and set April 17, 2008 as the last date for Petitioner to file objections. No objections have been timely filed.
A district judge "may accept, reject, or modify the recommended disposition" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). When no objections are filed, the de novo review is waived. Section 636(b)(1) does not require review by the district court under a lesser standard. Thomas , 474 U.S. 140, 149-50 (1985). The "statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in the original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review).
In the absence of objections, the court ADOPTS the Report and Recommendation. For the reasons stated in the Report and Recommendation, Petitioner's motion for leave to amend is GRANTED with respect to claim no. 6 and DENIED WITH PREJUDICE in all other respects.
IT IS SO ORDERED.
HON. LOUISA S. PORTER UNITED STATES MAGISTRATE JUDGE
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