Rojas-Lopez v. Gore

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATION. Court adopts in full the 13 Report and Recommendation and denies the Petition. Court also denies a Certificate of Appealability because Petitioner has not made a substantial showing of the denial of a constitiutional right. Signed by Judge Irma E. Gonzalez on 3/2/2013.(All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JORGE ROJAS-LOPEZ,

CASE NO. 11-CV-2304 - IEG (KSC)
Petitioner,

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

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vs.

[Doc. No. 13]
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(2) DENYING PETITION FOR
WRIT OF HABEAS CORPUS; AND

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MIKE MCDONALD, Warden,

[Doc. No. 5]

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Respondent.

(3) DENYING CERTIFICATE OF
APPEALABILITY

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Before the Court is Petitioner Jorge Rojas-Lopez’s First Amended Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254 (“the Petition”). [Doc. No. 5.] Petitioner was

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convicted of kidnapping for ransom in San Diego County Superior Court and sentenced to life in

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prison without the possibility of parole. [Id. at 6-7.] He claims: (1) that there was insufficient

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evidence at trial to support the jury’s finding of bodily harm; and (2) that the superior court erred

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in instructing the jury that a finding of bodily harm did not depend on a finding of great bodily

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injury. [Id.]

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The Court referred the matter to Magistrate Judge Karen. S. Crawford, who issued a Report

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and Recommendation (“R & R”) recommending that the Petition be denied. [Doc. No. 13.] The R
& R concludes that the Petition should be denied because the jury’s finding of bodily harm was
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11cv2304

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supported by sufficient evidence and the challenged jury instruction was not erroneous. [See id. at

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8, 10.] The time for filing objections to the R & R expired on September 12, 2012. [See id. at 12.]

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Petitioner has not filed any objections.

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DISCUSSION

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The Court reviews de novo those portions of the R & R to which objections are made. 28

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U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” Id. However, “[t]he statute makes it clear that

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the district judge must review the magistrate judge’s findings and recommendations de novo if

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objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th

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Cir. 2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute requires a

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district judge to review, de novo, findings and recommendations that the parties themselves accept

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as correct.” Id.

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In this case, the time for filing objections to the R & R passed months ago and Petitioner

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has not filed any objections. Accordingly, the Court may adopt the R & R on that basis alone. See

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id. Having reviewed the Petition, Respondent’s Answer, [Doc. No. 10], and the R & R, the Court

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hereby approves and ADOPTS IN FULL the R & R. See 28 U.S.C. § 636(b)(1).

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CONCLUSION
Having reviewed the R & R and there being no objections, the Court ADOPTS IN FULL

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the R & R and DENIES the Petition. The Court also DENIES a certificate of appealability

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because Petitioner has not “made a substantial showing of the denial of a constitutional right.” See

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28 U.S.C. § 2253(c)(2).

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IT IS SO ORDERED.
DATED:

March 2, 2013

______________________________

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IRMA E. GONZALEZ
United States District Judge

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11cv2304