UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
September 13, 2012
ELMER DWAYNE JAMES,
MATTHEW CATE, SECRETARY,
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.
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).
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.
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