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Rinaldi v. Poulos

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 18, 2010

JOSEPH RINALDI, PETITIONER,
v.
M. E. POULOS ET AL., RESPONDENTS.

ORDER (1) ADOPTING REPORT AND RECOMMENDATION; AND (2) DENYING PETITION

Petitioner Joseph Rinaldi, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. 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). Respondents filed a response and Petitioner filed a traverse. On July 29, 2010 the Magistrate Judge issued a Report and Recommendation, recommending to deny the Petition. Petitioner has not filed any objections.

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, the Petition is DENIED. For the same reasons, certificate of appealability is DENIED.

IT IS SO ORDERED.

M. James Lorenz United States District Court Judge

HON. LOUISA S. PORTER UNITED STATES MAGISTRATE JUDGE

20101018

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