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Elmer Dwayne James v. Matthew Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 13, 2012

ELMER DWAYNE JAMES,
PETITIONER,
v.
MATTHEW CATE, SECRETARY,
RESPONDENT.

The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge

ORDER: (1) ADOPTING IN FULL REPORT AND RECOMMENDATION; [Doc. No. 18] (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND [Doc. No. 1] (3) DENYING CERTIFICATE OF APPEALABILITY

Before the Court is Petitioner Elmer Dwayne James's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("the Petition"). [Doc. No. 1.] Petitioner was convicted of first degree robbery in San Diego County Superior Court and sentenced to five years in state prison. [Id. at 2-3.] He claims that his appointed counsel's failure to object to or appeal the decision at trial not to grant immunity to a prospective defense witness violated his Sixth Amendment right to the effective assistance of counsel. [Id. at 6.]

The Court referred the matter to Magistrate Judge Nita L. Stormes, who issued a Report and Recommendation ("R & R") recommending that the Petition be denied. [Doc. No. 18.] The R & R concludes that the Petition should be denied because the sole claim presented is procedurally defaulted and without merit. [See id. at 2.] The time for filing objections to the R & R expired on July 31, 2012. [See id. at 28] Petitioner has not filed any objections.

DISCUSSION

The Court reviews de novo those portions of the R & R to which objections are made. 28 U.S.C. § 636(b)(1). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. However, "[t]he 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 original). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Id.

In this case, the time for filing objections to the R & R passed over a month ago and Petitioner has not filed any objections. Accordingly, the Court may adopt the R & R on that basis alone. See id. Having reviewed the Petition, Respondent's Answer, [Doc. No. 17], and the R & R, the Court hereby approves and ADOPTS IN FULL the R & R. See 28 U.S.C. § 636(b)(1).

CONCLUSION

Having reviewed the R & R and there being no objections, the Court ADOPTS IN FULL the R & R and DENIES the Petition. The Court also DENIES a certificate of appealability because Petitioner has not "made a substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.

20120913

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