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Marcus D. Caldwell v. Matthew Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 18, 2012

MARCUS D. CALDWELL,
PETITIONER,
v.
MATTHEW CATE, SECRETARY,
RESPONDENT.

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. 10] OVERRULING PETITIONER'S OBJECTIONS; [Doc. No. 11] DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Marcus D. Caldwell, a state prisoner proceeding pro se, filed a First Amended Petition for Writ of Habeas Corpus pursuant to Title 28 of the United States Code, section 2254, challenging the state trial court's sentencing of Petitioner to a stipulated term of six years for one count of sale of cocaine base in violation of California Health & Safety Code § 11352(a) and one strike prior under California Penal Code § 667(b)-(I). See Doc. No. 4. Respondent filed an Answer to the First Amended Petition, contending the petition should be denied on both procedural and substantive grounds. See Doc. No. 6. Plaintiff filed a Traverse in response. See Doc. No. 8. The matter was referred to United States Magistrate Judge David H. Bartick for preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), and Civil Local Rule HC.2. Judge Bartick has issued a well-reasoned and thorough Report recommending that the petition be denied as it is without merit. See Doc. No. 10.

Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), the 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 [judge]." 28 U.S.C. § 636(b) (1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

Having considered Petitioner's objections and conducted a de novo review of the pertinent portions of the record, the Court concludes that Judge Bartick issued an accurate report and well-reasoned recommendation that the instant petition be denied as lacking merit.

Accordingly, IT IS HEREBY ORDERED THAT:

1. The Report and Recommendation is ADOPTED in its entirety.

2. Petitioner's First Amended Petition for Writ of Habeas Corpus is DENIED.

3. The Clerk of Court shall terminate this case and enter judgment in favor of Respondent.

IT IS SO ORDERED.

20120918

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