Simmons v. Hedgpeth

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION, denying 1 Petition, and denying Certificate of Appealability. Signed by Judge Dana M. Sabraw on 11/27/2012.(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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BARRON SIMMONS,

CASE NO. 10CV1795 DMS (BGS)
Petitioner,

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ORDER ADOPTING REPORT
AND RECOMMENDATION,
DENYING PETITION, AND
DENYING CERTIFICATE OF
APPEALABILITY

vs.
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MATTHEW CATE,
Respondent.

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Petitioner Barron Simmons, a state prisoner proceeding pro se, filed a petition for writ of

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habeas corpus under 28 U.S.C. § 2254. The case was referred to United States Magistrate Judge

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Bernard G. Skomal for a report and recommendation pursuant to 28 U.S.C. Section 636(b)(1)(B) and

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Civil Local Rule 72.1(d). The case was initially stayed to give Petitioner time to exhaust his state

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remedies. After completion of state court proceedings, on August 24, 2012, Respondent filed a

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response. Petitioner did not file a traverse. On October 10, 2011, the Magistrate Judge issued a

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Report and Recommendation recommending to deny the Petition. Petitioner has not filed any

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objections.

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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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10cv1795

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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: November 27, 2012

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HON. DANA M. SABRAW
United States District Judge

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