Mayfield v. McEwen et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION and denying petition for writ of habeas corpus. Signed by Judge Larry Alan Burns on 9/15/11.(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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THOMAS GENE MAYFIELD, JR.,
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CASE NO. 10cv2234-LAB (WVG)
Petitioner,
ORDER ADOPTING REPORT
AND RECOMMENDATION; AND
vs.
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ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
L S McEWEN, et al.,
Respondents.
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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, seeking relief from denial of parole. This matter was referred
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to Magistrate Judge William Gallo for report and recommendation. On June 23, 2011, Judge
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Gallo issued his report and recommendation (the “R&R”), recommending that the petition
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be denied. Objections were due July 22, 2011, but Petitioner filed none and did not seek
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additional time within which to do so.
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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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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. In particular,
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the Supreme Court’s recent decision in Swarthout v. Cooke, 131 S.Ct. 859 (2011) makes
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clear the petition cannot succeed. The petition is DENIED.
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IT IS SO ORDERED.
DATED: September 15, 2011
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HONORABLE LARRY ALAN BURNS
United States District Judge
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