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John Fenton Parkinson v. Dan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 4, 2012

JOHN FENTON PARKINSON, PLAINTIFF,
v.
DAN PARAMO, WARDEN,
DEFENDANTS.

The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION [Doc. ) No. 12]; (2) DENYING PETITION; AND (3) DENYING CERTIFICATE OF APPEALABILITY [Doc. No. 1 and 12]

Before the Court is John Parkinson's Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and the Respondent's response to the Petition, filed March 28, 2012. (Doc. No. 12.) Petitioner filed an opposition on April 21, 2011. (Doc. No. 15.) The Court referred the matter to Magistrate Judge Jan M. Adler, who issued a Report and Recommendation ("R&R") recommending the Court deny the Petition on the merits. (R&R, Doc. No. 12.)

Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district judge's duties in connection with a magistrate judge's report and recommendation. The district judge 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 finding 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).

However, in the absence of timely objection(s), the Court "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72(b), Advisory Committee Notes (1983); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

Neither party has timely filed objections to Magistrate Judge Adler's Report and Recommenda- tion. Having reviewed the report and recommendation, the Court finds that Magistrate Judge Adler's Report and Recommendation is thorough, well reasoned, and contains no clear error. The Court also finds that the Petitioner has failed to demonstrate that the Petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.

Accordingly, the Court hereby: (1) ADOPTS Magistrate Judge Adler's Report and Recommendation;

DENIES the Petition on the merits, and (3) DECLINES to issue a certificate of appealability.*fn1

IT IS SO ORDERED.


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