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Jorge Rojas-Lopez v. Mike Mcdonald

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 2, 2013

JORGE ROJAS-LOPEZ, PETITIONER,
v.
MIKE MCDONALD, WARDEN, RESPONDENT.

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. 13]

(2) DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND [Doc. No. 5]

(3) DENYING CERTIFICATE OF APPEALABILITY

Before the Court is Petitioner Jorge Rojas-Lopez's First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("the Petition"). [Doc. No. 5.] Petitioner was convicted of kidnapping for ransom in San Diego County Superior Court and sentenced to life in prison without the possibility of parole. [Id. at 6-7.] He claims: (1) that there was insufficient evidence at trial to support the jury's finding of bodily harm; and (2) that the superior court erred in instructing the jury that a finding of bodily harm did not depend on a finding of great bodily injury. [Id.]

The Court referred the matter to Magistrate Judge Karen. S. Crawford, who issued a Report and Recommendation ("R & R") recommending that the Petition be denied. [Doc. No. 13.] The R & R concludes that the Petition should be denied because the jury's finding of bodily harm was supported by sufficient evidence and the challenged jury instruction was not erroneous. [See id. at 8, 10.] The time for filing objections to the R & R expired on September 12, 2012. [See id. at 12.] Petitioner has not filed any objections.

DISCUSSION

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 months 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. 10], and the R & R, the Court hereby approves and ADOPTS IN FULL the R & R. See 28 U.S.C. § 636(b)(1).

CONCLUSION

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.

20130302

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