UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
May 24, 2010
VICTOR CRUZ, PETITIONER,
LARRY SMALL, WARDEN, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER: (1) ADOPTING REPORT AND RECOMMENDATION (DOC. NO. 24.) (2) DENYING PETITION (DOC. NO. 1)
On October 21, 2008, Petitioner Victor Cruz ("Petitioner"), a state prisoner proceeding pro se, filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner challenges his 2006 conviction for assault with a deadly weapon, battery with serious bodily injury, giving false information to a peace officer, and threatening a witness. (Doc. No. 24 at 1.)
On February 5, 2010, Magistrate Judge Cathy Ann Bencivengo issued a Report and Recommendation ("Report"), recommending that the Court deny the Petition. The Report also ordered that any objections were to be filed by March 15, 2010. (Report at 8.) To date, no objection has been filed, nor has there been a request for additional time in which to file an objection.
A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(holding that 28 U.S.C. 636(b)(1)(c) "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")(emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Arizona 2003) (concluding that where no objections were filed, the District Court had no obligation to review the magistrate judge's Report). This rule of law is well established within the Ninth Circuit and this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)("Of course, de novo review of a R & R is only required when an objection is made to the R & R.")(emphasis added)(citing Renya-Tapia, 328 F.3d 1121); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopted Report without review because neither party filed objections to the Report despite the opportunity to do so, "accordingly, the Court will adopt the Report and Recommendation in its entirety."); see also Nichols v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.).
The Court, therefore, accepts Judge Bencivengo's recommendation, and ADOPTS the Report (Doc. No. 24) in its entirety. For the reasons stated in the Report, which is incorporated herein by reference, the Court DISMISSES the Petition WITH PREJUDICE. (Doc. No. 1.)
Moreover, because the Court does not believe that reasonable jurists would find the Court's assessment of the constitutional claims debatable or wrong it DECLINES to issue a Certificate of Appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS SO ORDERED.
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