Rinaldi v. Poulos et al

Filing 31

ORDER (1) Adopting (Doc. 29 ) Report and Recommendation; and (2) Denying Petition. The Court Adopts the Report and Recommendation of Magistrate Judge Louisa S. Porter. For the reasons stated in the Report and Recommendation, the Petition is Denied. For the same reasons, certificate of appealability is Denied. Signed by Judge M. James Lorenz on 10/18/2010. (All non-registered users served via U.S. Mail Service) (srm)

Rinaldi v. Poulos et al

Doc. 31

1 2 3 4 5 6 7 8 9 10 11 JOSEPH RINALDI, 12 13 v. 14 15 16 17 M. E. POULOS et al., Respondents. Petitioner, ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv1637-L(POR) ORDER (1) ADOPTING REPORT AND RECOMMENDATION; AND (2) DENYING PETITION UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Petitioner Joseph Rinaldi, a state prisoner proceeding pro se, filed a petition for writ of

18 habeas corpus under 28 U.S.C. § 2254. The case was referred to United States Magistrate Judge 19 Louisa S. Porter for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and 20 Civil Local Rule 72.1(d). Respondents filed a response and Petitioner filed a traverse. On July 21 29, 2010 the Magistrate Judge issued a Report and Recommendation, recommending to deny the 22 Petition. Petitioner has not filed any objections. 23 A district judge "may accept, reject, or modify the recommended disposition" on a

24 dispositive matter prepared by a magistrate judge proceeding without the consent of the parties 25 for all purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de 26 novo determination of those portions of the [report and recommendation] to which objection is 27 made." 28 U.S.C. § 636(b)(1). When no objections are filed, the de novo review is waived. 28 Section 636(b)(1) does not require review by the district court under a lesser standard. Thomas
08cv1637

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1 v. Arn, 474 U.S. 140, 149-50 (1985). The "statute makes it clear that the district judge must 2 review the magistrate judge's findings and recommendations de novo if objection is made, but 3 not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) 4 (emphasis in the original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. 5 Ariz. 2003) (applying Reyna-Tapia to habeas review). 6 In the absence of objections, the court ADOPTS the Report and Recommendation. For

7 the reasons stated in the Report and Recommendation, the Petition is DENIED. For the same 8 reasons, certificate of appealability is DENIED. 9 10 11 DATED: October 18, 2010 12 13 14 COPY TO: M. James Lorenz United States District Court Judge IT IS SO ORDERED.

HON. LOUISA S. PORTER 15 UNITED STATES MAGISTRATE JUDGE 16 ALL PARTIES/COUNSEL 17 18 19 20 21 22 23 24 25 26 27 28
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