Black v. Harrington

Filing 35

ORDER denying 1 Petition for Writ of Habeas Corpus. The court adopts the 29 Report and Recommendation. Certificate of Appealability is denied. Signed by Judge Dana M. Sabraw on 1/3/2013.(All non-registered users served via U.S. Mail Service)(aef)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LACY BLACK,

Case No. 10cv1707 DMS (MDD)
Petitioner,

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ORDER DENYING PETITION

vs.
KELLY HARRINGTON, Warden,

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Respondent.

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On August 12, 2010, Petitioner Lacy C. Black, a state prisoner proceeding pro se, filed a

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petition for writ of habeas corpus under 28 U.S.C. Section 2254 challenging his conviction and

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sentence for attempted murder. The petition was referred to United States Magistrate Judge Mitchell

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D. Dembin for a report and recommendation pursuant to 28 U.S.C. Section 636(b)(1)(B) and Civil

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Local Rule 72.1(d). On August 21, 2012, the Magistrate Judge issued a Report and Recommendation

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recommending to deny the Petition.

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Petitioner’s objections to the Report and Recommendation were due on September 12, 2012.

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The due date has been extended twice to accommodate Petitioner’s requests. Most recently, the due

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date was extended to December 12, 2012. To date, Petitioner has not filed objections to the Report

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and Recommendation.

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A district judge "may accept, reject, or modify the recommended disposition" on a dispositive

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matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes.

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Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de novo determination of

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those portions of the [report and recommendation] to which objection is made." 28 U.S.C. §
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636(b)(1). When no objections are filed, the de novo review is waived. Section 636(b)(1) does not

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require review by the district court under a lesser standard. Thomas v. Arn, 474 U.S. 140, 149-50

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(1985). The "statute makes it clear that the district judge must review the magistrate judge's findings

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and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia,

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328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see Schmidt v. Johnstone, 263

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F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review).

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In the absence of objections, the court ADOPTS the Report and Recommendation. The

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petition is DENIED for the reasons stated in the Report and Recommendation. For the same reasons,

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certificate of appealability is also DENIED.

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IT IS SO ORDERED.

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DATED: January 3, 2013

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HON. DANA M. SABRAW
United States District Judge

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