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Thomas Gene Mayfield, Jr v. L S Mcewen

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 15, 2011

THOMAS GENE MAYFIELD, JR.,
PETITIONER,
v.
L S MCEWEN, ET AL.,
RESPONDENTS.

The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION; AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner, a prisoner in state custody, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking relief from denial of parole. This matter was referred to Magistrate Judge William Gallo for report and recommendation. On June 23, 2011, Judge Gallo issued his report and recommendation (the "R&R"), recommending that the petition be denied. Objections were due July 22, 2011, but Petitioner filed none and did not seek additional time within which to do so.

A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "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." Id. When no objections are filed, the Court need not review the report and recommendation de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). See also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review).

The Court has reviewed the R&R, finds it to be correct, and ADOPTS it. In particular, the Supreme Court's recent decision in Swarthout v. Cooke, 131 S.Ct. 859 (2011) makes clear the petition cannot succeed. The petition is DENIED.

IT IS SO ORDERED.

20110915

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