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United Levao v. D.T. Lewis

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 3, 2013

UNITED LEVAO,
PETITIONER,
v.
D.T. LEWIS, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER:

(1) ADOPTING REPORT AND RECOMMENDATION [DOC. 48] AND

(2) DENYING PETITIONER'S FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS [DOC. 16]

On January 7, 2011, United Levao ("Petitioner"), a California prisoner proceeding pro se, filed his first amended petition for writ of habeas corpus under 28 U.S.C. § 2254 ("Petition"). [Doc. 16.] Levao is serving an indeterminate sentence of 15 years to life for first-degree murder. He contests his confinement, alleging that his due process rights and other constitutional rights under the fourth, fifth, sixth and fourteenth amendments were violated from the time he was first detained up through his trial and conviction. Respondent filed an answer, and then as directed by the court, an amended answer, arguing that the court should deny the Petition on all grounds. [Docs. 40, 46.] The court granted Levao's 60-day extension request for him to file his traverse. [Doc. 47.] The traverse was due December 14, 2012. As of the date of this order, no traverse has been filed.

On January 31, 2013, after a review of the Petition, amended answer, and complete record in the case, United States Magistrate Judge Nita L. Stormes issued a Report and Recommendation ("Report") recommending that this Court deny the Petition. [Doc. 48.] The Report also ordered that any objection was to be filed by February 22, 2013. (Id. at 20.) To date, neither party has filed an objection or made a request for additional time to do so.

A district court's duties concerning a magistrate judge's report and recommendation, and a party's objections thereto, are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that 28 U.S.C. § 636(b)(1)(C) "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") (emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district court had no obligation to review the magistrate judge's report). This rule of law is well-established within the Ninth Circuit and this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) ("Of course, de novo review of a R & R is only required when an objection is made to the R & R.") (emphasis added) (citing Renya-Tapia, 328 F.3d at 1121); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopting report in its entirety without review because neither party filed objections to the report despite the opportunity to do so); see also Nichols v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.).

Accordingly, the Court accepts Magistrate Judge Stormes' recommendation, and ADOPTS the Report in its entirety [Doc. 48]. For the reasons stated in the Report, which is incorporated herein by reference, the Court DENIES the Petition [Doc. 16]. The district court clerk shall close the district court case file.

IT IS SO ORDERED.

20130403

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