Cruz v. Small et al

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATION and Denying 1 Petition: The Court accepts Magistrate Judge Bencivengo's recommendation, and adopts the 24 Report in its entirety. The Court dismisses the Petition with Prejudice. The Court declines to issue a Certificate of Appealability. Signed by Judge Thomas J. Whelan on 5/24/2010.(All non-registered users served via U.S. Mail Service)(mkz)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 On October 21, 2008, Petitioner Victor Cruz ("Petitioner"), a state prisoner 17 proceeding pro se, filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 18 2254. (Doc. No. 1.) Petitioner challenges his 2006 conviction for assault with a deadly 19 weapon, battery with serious bodily injury, giving false information to a peace officer, and 20 threatening a witness. (Doc. No. 24 at 1.) 21 On February 5, 2010, Magistrate Judge Cathy Ann Bencivengo issued a Report and 22 Recommendation ("Report"), recommending that the Court deny the Petition. The Report 23 also ordered that any objections were to be filed by March 15, 2010. (Report at 8.) To date, 24 no objection has been filed, nor has there been a request for additional time in which to 25 file an objection. 26 A district court's duties concerning a magistrate judge's report and recommendation 27 and a respondent's objections thereto are set forth in Rule 72(b) of the Federal Rules of 28 Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court
-108cv 1942w

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
VICTOR CRUZ, Petitioner, v. CASE NO. 08-CV-1942 W (CAB) ORDER: (1) ADOPTING REPORT AND RECOMMENDATION (DOC. NO. 24.) (2) DENYING PETITION (DOC. NO. 1)

LARRY SMALL, Warden, et al., Respondents.

1 is not required to review the magistrate judge's report and recommendation. See United 2 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(holding that 28 U.S.C. 3 636(b)(1)(c) "makes it clear that the district judge must review the magistrate judge's 4 findings and recommendations de novo if objection is made, but not otherwise")(emphasis in 5 original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Arizona 2003) (concluding 6 that where no objections were filed, the District Court had no obligation to review the 7 magistrate judge's Report). This rule of law is well established within the Ninth Circuit and 8 this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)("Of course, 9 de novo review of a R & R is only required when an objection is made to the R & 10 R.")(emphasis added)(citing Renya-Tapia, 328 F.3d 1121); Nelson v. Giurbino, 395 F. 11 Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopted Report without review because 12 neither party filed objections to the Report despite the opportunity to do so, "accordingly, 13 the Court will adopt the Report and Recommendation in its entirety."); see also Nichols 14 v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.). 15 The Court, therefore, accepts Judge Bencivengo's recommendation, and ADOPTS 16 the Report (Doc. No. 24) in its entirety. For the reasons stated in the Report, which is 17 incorporated herein by reference, the Court DISMISSES the Petition WITH 18 PREJUDICE. (Doc. No. 1.) 19 Moreover, because the Court does not believe that reasonable jurists would find the 20 Court's assessment of the constitutional claims debatable or wrong it DECLINES to issue 21 a Certificate of Appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 22 23 24 26 27 28 -2Hon. Thomas J. Whelan United States District Judge IT IS SO ORDERED.

25 DATED: May 24, 2010

08cv 1942w