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James G. Duran v. Nancy L. Hardy

September 18, 2012

JAMES G. DURAN,
PETITIONER,
v.
NANCY L. HARDY, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Report and Recommendation (ECF No. 23) of the Honorable Magistrate Judge David H. Bartick.

BACKGROUND

In 1974, Petitioner James G. Duran pled guilty to two counts of first degree murder and was sentenced to seven years to life in California state prison, with the possibility of parole after seven years. (ECF No. 1 at 8).

On October 1, 2008, the California Board of Parole Hearings ("Board") denied

Petitioner's request for parole for the fifteenth time. (ECF No. 1 at 8; ECF No. 8-1).

On August 1, 2011, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"), asserting that the Board's determination violated: (1) his right to due process of law, (2) his right to equal protection under the law, and (3) the Eighth Amendment's prohibition on cruel and unusual punishment. (ECF No. 1).

On October 3, 2011, Respondent Nancy L. Hardy filed a Motion to Dismiss pursuant to Rule 4 of 28 U.S.C. § 2254. (ECF No. 8). Respondent contends that Petitioner's due process claim, which challenges the sufficiency of the evidence supporting the Board's decision, is foreclosed by the United States Supreme Court's decision in Swarthout v. Cooke, __ U.S. __, 131 S.Ct. 859 (Jan. 24, 2011). Respondent contends that Petitioner fails to state a claim for violation of the equal protection clause or the Eighth Amendment's prohibition on cruel and unusual punishment. On April 2, 2012, Petitioner filed an Opposition. (ECF No.

21).

On June 13, 2012, the Magistrate Judge issued a Report and Recommendation recommending that the Petition be dismissed without leave to amend. (ECF No. 23).

On August 15, 2012, Petitioner filed objections to the Report and Recommendation. (ECF No. 26). Petitioner objects to the Magistrate Judge's findings on the grounds that "the Report misconstrues the applicable Federal Law and does not properly apply the law of disproportionality to Petitioner's case." Id. at 2.

STANDARD OF REVIEW

The duties of the district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). 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); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). When no objections are filed, the district court need not review the Report and Recommendation de novo. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). ...


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