Ojito v. Clark

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION 19 . The petition is denied. Signed by Judge Larry Alan Burns on 10/5/11.(All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GERALDO OJITO,

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CASE NO. 09cv2127-LAB (JMA)
Plaintiff,

ORDER ADOPTING REPORT
AND RECOMMENDATION; AND

vs.
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ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

KEN CLARK, warden,
Defendant.

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Petitioner, a prisoner in state custody, filed this petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254, challenging his conviction for two counts of second degree

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murder.

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recommendation. On March 2, 2011, Judge Adler issued his report and recommendation

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(the "R&R"), recommending that the petition be denied. Objections were due March 25,

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2011, but Petitioner filed none and did not seek additional time within which to do so.

This matter was referred to Magistrate Judge Jan Adler for report and

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A district court has jurisdiction to review a Magistrate Judge's report and

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recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "A judge of the court may

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accept, reject, or modify, in whole or in part, the findings or recommendations made by the

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magistrate judge." 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the

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R&R to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003) (en banc). "The statute makes it clear that the district judge must
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09cv2127

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review the magistrate judge's findings and recommendations de novo if objection is made,

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but not otherwise." Id. When no objections are filed, the Court need not review the report

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and recommendation de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005).

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See also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003)

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(applying Reyna-Tapia to habeas review).

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The Court has reviewed the R&R, finds it to be correct, and ADOPTS it. The petition
is DENIED.

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IT IS SO ORDERED.
DATED: October 5, 2011

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HONORABLE LARRY ALAN BURNS
United States District Judge

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09cv2127