Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Spence v. Beard

United States District Court, S.D. California

April 29, 2015

JAMES EDWARD SPENCE, Petitioner,
v.
JEFFREY BEARD, Secretary, et al., Respondent.

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION IN ITS ENTIRETY; AND (2) DENYING PETITION [ECFs 14, 1]

CYNTHIA BASHANT, District Judge.

On July 8, 2014, Petitioner James Edward Spence, a state prisoner proceeding pro se, filed this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. ECF 1. This first Petition failed to properly name a respondent, so the Court dismissed it without prejudice. ECF 2. On August 1, 2014, Petition filed an amended Petition seeking relief from constitutional violations stemming from his state court trial. ECF 4.

Magistrate Judge Karen S. Crawford's briefing schedule required the Response to be due on October 13, 2014 and any Traverse to be submitted by November 12, 2014. ECF 5. Respondents filed a Response and Lodgments. ECFs 11, XX-X-XX-XX. Petitioner did not file a Traverse. On March 9, 2015, Judge Crawford issued a Report and Recommendation ("Report") recommending that this Court deny the Petition for Writ of Habeas Corpus. Judge Crawford ordered any objections to be filed by April 6, 2015, and any replies by April 20, 2015. To date, no objections have been filed, and neither party has requested additional time to do so.

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. But "[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); see also 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). "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. "When no objections are filed, the de novo review is waived." Marshall v. Astrue, No. 08cv1735, 2010 WL 841252, at *1 (S.D. Cal. Mar. 10, 2010) (Lorenz, J.) (adopting report in its entirety without review because neither party filed objections to the report despite the opportunity to do so).

In this case, the deadline for filing objections was on April 6, 2015. However, no objections have been filed, and neither party has requested additional time to do so. Consequently, the Court may adopt the R&R on that basis alone. See Reyna-Tapia, 328 F.3d at 1121. Having nonetheless conducted a de novo review of the FAP, the Response, and the Report, the Court hereby approves and ADOPTS the Report in its entirety (ECF 14), and DENIES the Petition for Writ of Habeas Corpus (ECF 4). Moreover, because reasonable jurists would not find the Court's assessment of the claims debatable or wrong, the Court DENIES a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

IT IS SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.