Murphy v. Cate

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION; the petition is denied with prejudice; Signed by Judge Larry Alan Burns on 12/9/10.(All non-registered users served via U.S. Mail Service)(kaj)

-WVG Murphy v. Cate

Doc. 20

1 2 3 4 5 6 7 8 9 10 11 12 vs. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MATTHEW L. CATE, Secretary, Respondent. Petitioner Michael J. Murphy, a state prisoner proceeding pro se, filed a Petition for W rit of Habeas Corpus pursuant to 28 U.S.C. § 2254 on September 2, 2009. Murphy challenges his convictions on count 1, first degree robbery; count 2, assault with a semiautomatic firearm, a handgun; count 3, assault with a semiautomatic firearm, a rifle; count 4, residential burglary; count 5, false imprisonment by violence or menace; count 6, grand theft of personal property; count 7, intimidating a witness by malicious use of force or violence; and counts 9, 10, 11, and 12, tampering with electric, telephone and cable television lines. The Court referred the petition to Magistrate Judge Ruben B. Brooks for a Report and Recommendation ("R&R") pursuant to 28 U.S.C. § 636 and Civil Local Rule 72.1(d). The case was later transferred to Magistrate Judge William V. Gallo. After the petition was briefed on the merits, Judge Gallo issued an R&R recommending that the Court DENY it. The R&R ordered the parties to file any objections by September 21, 2010 and advised them -1Dockets.Justia.com

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

MICHAEL JAMES MURPHY, Petitioner,

CASE NO. 09cv1941-LAB (RBB) ORDER ADOPTING REPORT & RECOMMENDATION

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

that failure to do so may waive the right to raise those objections on appeal. Neither party filed objections, nor asked for additional time. In considering an R&R, a district judge "may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b); see also 28 U.S.C. § 636(b)(1). "[T]he court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "[T]he 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). The Court has reviewed the R&R and finds it to be thorough and correct, particularly considering that Murphy failed to file any objections. Therefore, the Court ADOPTS the R&R. The petition is DENIED with prejudice.

IT IS SO ORDERED. DATED: December 9, 2010

HO N O R AB LE LARRY ALAN BURNS United States District Judge

-2-