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Stephen Toney v. Matthew Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 10, 2013

STEPHEN TONEY,
PETITIONER,
v.
MATTHEW CATE,
RESPONDENT.

The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION; AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Stephen Toney filed his petition pursuant to 28 U.S.C. § 2254 challenging his convictions in California state court. The petition was referred to Magistrate Judge Barbara Major, who issued her report and recommendation (the "R&R") on October 26, 2012, which recommended denying the petition. Toney was given an opportunity to object to the R&R, but did not do so. Toney also did not object to any of Judge Major's nondispositive rulings, including denial of discovery and denial of appointment of counsel.

A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court 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). The Court reviews de novo those portions of the R&R to which specific written objection is made.

United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "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." Id. When no objections are filed, the Court need not review de novo the report and recommendation. Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005).

The Court has reviewed the R&R, finds it to be correct, and ADOPTS it. The petition is DENIED, and the Court also DENIES a certificate of appealability.

IT IS SO ORDERED.

20130510

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