Acero v. McDonald et al

Filing 11

ORDER: All portions of the Report and Recommendation are adopted. The Petition for Writ of Habeas Corpus is denied. Signed by Judge William Q. Hayes on 8/10/2009. (All non-registered users served via U.S. Mail Service.) (mdc) (av1).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HAYES, Judge: DAVID ESCOBEDO ACERO, vs. TERRY MCDONALD, Warden, Petitioner, CASE NO. 08cv1921 WQH (NLS) ORDER UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Respondent.

The matter before the Court is the review of the Report and Recommendation (Doc. # 10) filed by Magistrate Judge Nita L. Stormes. On October 17, 2008, Petitioner filed the Petition for Writ of Habeas Corpus (Doc. # 1) pursuant to 28 U.S.C. 2254. The Petition alleges that Petitioner was denied his fourteenth amendment due process right to a fair sentencing hearing because the trial court relied on a supplemental statement in aggravation that was untimely and consisted of incompetent evidence. Petitioner requests that his sentence be reversed and the matter remanded for a new sentencing hearing. On June 29, 2009, the Magistrate Judge issued the Report and Recommendation recommending that this Court deny the Petition in its entirety. The Report and Recommendation concluded that "Petitioner has failed to show that the state courts' determinations were contrary to or an unreasonable application of clearly established federal law, or that they were based on an unreasonable determination of the facts." R&R, p. 7. The Report and Recommendation required the parties to file any objections no later than July 20, 2009. No party has filed any objections to the

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08cv1921 WQH (NLS)

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Report and Recommendation. Standard of Review The duties of the district court in connection with a Report and Recommendation of a Magistrate Judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When the parties object to a Report and Recommendation, "[a] judge of the [district] court shall make a de novo determination of those portions of the [Report and Recommendation] to which objection is made." 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). When no objections are filed, the district court need not review the Report and Recommendation de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). Ruling of the Court Neither party filed objections to the Report and Recommendation. The Court has reviewed all aspects of the Report and Recommendation of the Magistrate Judge filed on June 29, 2009, and adopts all portions of the Report and Recommendation. The Report and Recommendation correctly concluded that denial of the Petition was proper on grounds that "Petitioner has failed to show that the state courts' determinations were contrary to or an unreasonable application of clearly established federal law, or that they were based on an unreasonable determination of the facts." R&R, p. 7. IT IS HEREBY ORDERED that all portions of the Report and Recommendation (Doc. # 8) are ADOPTED. The Petition for Writ of Habeas Corpus (Doc. # 1) is DENIED. DATED: August 10, 2009 WILLIAM Q. HAYES United States District Judge

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08cv1921 WQH (NLS)