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Barron Simmons v. Matthew Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 27, 2012

BARRON SIMMONS,
PETITIONER,
v.
MATTHEW CATE,
RESPONDENT.

The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING PETITION, AND APPEALABILITY DENYING CERTIFICATE OF

Petitioner Barron Simmons, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. The case was referred to United States Magistrate Judge Bernard G. Skomal for a report and recommendation pursuant to 28 U.S.C. Section 636(b)(1)(B) and Civil Local Rule 72.1(d). The case was initially stayed to give Petitioner time to exhaust his state remedies. After completion of state court proceedings, on August 24, 2012, Respondent filed a response. Petitioner did not file a traverse. On October 10, 2011, the Magistrate Judge issued a Report and Recommendation recommending to deny the Petition. Petitioner has not filed any objections.

A district judge "may accept, reject, or modify the recommended disposition" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). When no objections are filed, the de novo review is waived. Section 636(b)(1) does not require review by the district court under a lesser standard. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The "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); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review).

In the absence of objections, the court ADOPTS the Report and Recommendation. The petition is DENIED for the reasons stated in the Report and Recommendation. For the same reasons, certificate of appealability is also DENIED.

IT IS SO ORDERED.

20121127

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