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Melchor Llamas v. Uribe

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 2, 2011

MELCHOR LLAMAS,
PLAINTIFF,
v.
URIBE, JR., WARDEN,
DEFENDANT.

The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE [Doc. No. 13]

DENYING WITH PREJUDICE DOMINGO PETITIONER'S FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS [Doc. No. 4]

Petitioner Melchor Llamas, a state prisoner proceeding pro se and in forma pauperis, filed a first amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. No. 4], challenging a September 3, 2008 decision by the California Board of Prison Terms denying his request for parole. Respondent filed an answer to the first amended petition [Doc. No. 9]. Petitioner did not file a traverse, despite requesting and receiving an extension of time in which to do so [Doc. Nos. 10 & 11]. The matter is currently before the Court for review of the Report and Recommendation issued by United States Magistrate Judge William McCurine, Jr. recommending that the first amended petition be denied [Doc. No. 13].

Judge McCurine issued a well reasoned and thorough Report recommending the first amended petition be denied in its entirety. Objections to the Report and Recommendation were due no later than July 15, 2011. To date, Petitioner has not filed any objections.

Where, as here, the case has been referred to the magistrate judge pursuant to 28 U.S.C. § 636, a district judge "may accept, reject, or modify the recommended disposition." Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "[T]he court shall make a de novo determination of those portions of the [Report and Recommendation] to which objection is made." 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). "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). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Reyna-Tapia, 328 F.3d at 1121. Accordingly, a district court is entitled to adopt a magistrate judge's report and recommendation based on the lack of objections. Nonetheless, the Court has conducted a de novo review and agrees that the first amended petition should be denied with prejudice.

Accordingly, in the absence of objections and after conducting a de novo review, the Court ADOPTS the Report and Recommendation in its entirety and DENIES WITH PREJUDICE Petitioner's first amended petition.

CERTIFICATE OF APPEALABILITY

"The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11 foll. 28 U.S.C. § 2254. A petitioner may not seek an appeal of a claim arising out of a state court detention unless the petitioner first obtains a certificate of appealability from a district judge or circuit judge under 28 U.S.C. § 2253. Fed. R. App. Proc. 22(b). Under 28 U.S.C. § 2253(c), a certificate of appealability will issue only if the petitioner makes a substantial showing of the denial of a constitutional right.

For the reasons set forth in detail in the Report and Recommendation, Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action.

IT IS SO ORDERED.

20110902

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