Lessie v. Unknown

Filing 17

ORDER (1) adopting Report and Recommendation 16 ; (2) denying Amended Petition for Writ of Habeas Corpus filed by Tony Lessie 4 ; and (3) denying Certificate of Appealability. Signed by Judge Irma E. Gonzalez on 8/2/12.(All non-registered users served via U.S. Mail Service)(cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TONY LESSIE,

CASE NO. 10-CV-2065 - IEG (RBB)
Petitioner,

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ORDER:
(1) ADOPTING IN FULL REPORT
AND RECOMMENDATION;

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vs.

[Doc. No. 16]
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(2) DENYING AMENDED
PETITION FOR WRIT OF
HABEAS CORPUS; AND

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TIM VIRGA, Warden,

[Doc. No. 4]

Respondent.

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(3) DENYING CERTIFICATE OF
APPEALABILITY

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Currently before the Court is Tony Lessie (“Petitioner”)’s Amended Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254 (“the Petition”). [Doc. No. 4.] Petitioner was

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convicted of second degree murder following a jury trial. [Id. at 2.] The jury made a true finding

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that Petitioner used a firearm in connection with the murder, and Petitioner was sentenced to 40

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years to life in state prison. [Id. at 1-2.] Petitioner claims that his conviction: (1) was in violation

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of his Fifth Amendment rights under Miranda v. Arizona; and (2) in violation of his statutory

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rights to have two completed phone calls within an hour of confinement. [Id. at 6, 8.]

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On January 10, 2012, Respondent Tim Virga (“Respondent”) filed an amended answer to
the Petition. [Doc. No. 15.] In his amended answer, Respondent concedes that the Petition was
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10cv2065

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timely filed but argues that Petitioner is not entitled to habeas relief. [Id.] Petitioner did not file a

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traverse to his Petition.

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The Court referred the matter to Magistrate Judge Ruben B. Brooks, who issued a Report

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and Recommendation (“R & R”) recommending that the Petition be denied. [Doc. No. 16.] The R

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& R concluded that ground one of the Petition should be denied because the California Supreme

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Court’s decision comported with controlling U.S. Supreme Court authority, and the state court

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reasonably found that Petitioner’s custodial admissions and confession were made voluntarily after

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he had been properly advised of his Miranda rights, which he understood and validly waived. [Id.

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at 19.] The R & R also concluded that ground two of the Petition should be denied because it

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alleges a violation of state law, which is not cognizable on federal habeas review. [Id. at 21.] The

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time for filing objections to the R & R passed on July 6, 2012 without Petitioner filing any

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objections.

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DISCUSSION

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The Court reviews de novo those portions of the Report and Recommendation to which

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objections are made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole

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or in part, the findings or recommendations made by the magistrate judge.” Id. However, “[t]he

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statute makes it clear that the district judge must review the magistrate judge’s findings and

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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). “Neither the Constitution

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nor the statute requires a district judge to review, de novo, findings and recommendations that the

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parties themselves accept as correct.” Id.
In this case, the time for filing objections to the R & R passed a month ago and Petitioner

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has not to this date filed any objections. Accordingly, the Court may adopt the R & R on that basis

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alone. See id. Having reviewed the Petition, Respondent’s answer, the relevant portions of the

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state record lodged by Respondent, and the R & R, the Court hereby approves and ADOPTS IN

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FULL the Report and Recommendation. See 28 U.S.C. § 636(b)(1).

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CONCLUSION
Having reviewed the Report and Recommendation and there being no objections, the Court

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ADOPTS IN FULL the Report and Recommendation and DENIES the Petition. The Court also

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DENIES a certificate of appealability because Petitioner has not “made a substantial showing of

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the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2).

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IT IS SO ORDERED.
DATED: August 2, 2012

______________________________

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IRMA E. GONZALEZ
United States District Judge

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