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Louis Gomez v. Larry Small

August 12, 2011

LOUIS GOMEZ,
PETITIONER,
v.
LARRY SMALL, 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. 26], (2) OVERRULING PETITIONER'S OBJECTIONS [DOC. 30], AND (3) DENYING PETITION WITH PREJUDICE [DOC. 1]

On September 8, 2009, Petitioner Louis Gomez, a state prisoner proceeding pro se, filed this Petition for Writ of Habeas Corpus under 42 U.S.C. § 2254 ("Petition"), challenging the Board of Parole Hearings' January 17, 2008 decision to deny him parole. (Doc. 1.) On May 31, 2001, United States Magistrate Judge Jan M. Adler issued a Report and Recommendation ("Report") recommending that this Court deny the Petition with prejudice. (Doc. 26.)

The Court decides the matters on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the reasons stated below, the Court ADOPTS the Report in its entirety (Doc. 26), and OVERRULES Petitioner's objections (Doc. 30). Accordingly, the Court DENIES WITH PREJUDICE the Petition (Doc. 1), and also DENIES a certificate of appealability.

I. BACKGROUND*fn1

On August 20, 2008, the Los Angeles Superior Court issued an opinion on a habeas petition filed by Petitioner. The Los Angeles Superior Court's findings of fact are as follows*fn2

Petitioner was received in the Department of Corrections on July 26, 1983 after a conviction for second-degree murder with use of a firearm. He was sentenced to fifteen years to life in prison. He was later convicted of assault on an inmate and was sentenced to an additional six years to run consecutively. His minimum parole eligibility date was April 24, 1995.

The record reflects that on February 2, 1982, petitioner and three accomplices who were all members of the Primiera Flats gang attempted to rob the victim. One of the accomplices was armed with a semi-automatic rifle. When the victim refused to give up his money, petitioner and his crime partners began to beat him. The victim was able to defend himself and escape. He ran into an apartment building chased by the armed accomplice. Petitioner and his other friend started to return to their car when they heard a gunshot. They entered the building. Petitioner drew a dagger from [a] holster on his waist and stabbed the victim four times. The victim finally surrendered his wallet. The victim died as a result of gunshot and stab wounds. Petitioner claimed he did not realize that the victim died because he gave them the wallet after the attack. (Report 2:6--14 [Doc. 26].) The Board conducted a parole hearing, and on January 17, 2009, found Petitioner unsuitable for parole. (Pet. ¶ 3 [Doc. 1].)

On or about June 20, 2008, Petitioner filed a habeas petition in Los Angeles Superior Court, contending that his prison term exceeded the constitutional maximum, his due-process rights had been violated by the Board's reliance on the crime and other unchanging factors in denying him parole, and the Board was not lawfully constituted. On August 20, 2008, the petition was denied. On or about October 30, 2008, Petitioner filed a habeas petition in the California Court of Appeal, asserting the same three grounds for relief raised in his previous petition. On December 30, 2008, the petition was denied. On January 22, 2009, Petitioner then filed a habeas petition in the California Supreme Court, again asserting the same three grounds previously raised. On July 8, 2009, the petition was denied.

On September 8, 2009, Petitioner filed the instant Petition. He again raises the same three claims. He alleges that: (1) his due-process rights were violated in connection with the parole hearing by the Board's continued reliance on unchanging and static factors, including the crime, to deny him parole for a seventh time (Ground One); (2) the term of his confinement has become constitutionally disproportionate to his sentence, which was imposed when he was a juvenile (Ground Two); and (3) the Board was unlawfully constituted, resulting in a purported bias (Ground Three). (Pet. ¶ 22; Pet. Exs. Pt. 1 at 4--14 [Doc. 1-1].) Thereafter, Respondents Larry Small and Jerry Brown filed an Answer, and Petitioner filed a Traverse. On May 31, 2011, Judge Adler issued the Report, recommending that this Court deny the Petition with prejudice. Petitioner filed timely objections.

II. LEGAL STANDARD

A district court's duties concerning a magistrate judge's report and recommendation and a party's objections thereto are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and in 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. Ariz. 2003) (concluding that where no objections are filed, the district court has no obligation to review the magistrate judge's report).

In contrast, the duties of a district court in connection with a magistrate judge's report and recommendation are quite different when an objection has been filed. These duties are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and in 28 U.S.C. § 636(b)(1). Specifically, 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)(c); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

III. DISCUSSION

A. Ground ...


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