Sellers v. Gipson

Filing 6

ORDER denying Petition. The court adopts 5 the Report and Recommendation. The petition is denied for the reasons stated in the Report and Recommendation. For the same reasons, certificate of appealability is also denied. Signed by Judge Dana M. Sabraw on 12/16/2013.(All non-registered users served via U.S. Mail Service)(aef)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEVIN KEITH SELLERS, Petitioner, 12 13 Case No. 13cv1017 DMS (PCL) ORDER DENYING PETITION vs. CONNIE GIPSON, Warden, 14 Respondent. 15 On April 29, 2013, Petitioner Kevin Keith Sellers, a state prisoner proceeding pro se, filed a 16 petition for writ of habeas corpus under 28 U.S.C. Section 2254 challenging his conviction and 17 sentence for five counts of first degree robbery of an inhabited dwelling, five counts of assault with 18 caustic chemicals, five counts of making criminal threats, one count of forcible rape, one count of 19 forcible rape while acting in concert, and one count of attempted sodomy by use of force, as well as 20 findings on firearm use allegations and allegations of sexual assaults during burglary and involving 21 tying or binding the victim. The petition was referred to United States Magistrate Judge Peter C. 22 Lewis for a report and recommendation pursuant to 28 U.S.C. Section 636(b)(1)(B) and Civil Local 23 Rule 72.1(d). On October 25, 2013, the Magistrate Judge issued a Report and Recommendation 24 recommending to deny the Petition. 25 Recommendation. Petitioner has not filed objections to the Report and 26 A district judge "may accept, reject, or modify the recommended disposition" on a dispositive 27 matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. 28 Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de novo determination of -1- 1 those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 2 636(b)(1). When no objections are filed, the de novo review is waived. Section 636(b)(1) does not 3 require review by the district court under a lesser standard. Thomas v. Arn, 474 U.S. 140, 149-50 4 (1985). The "statute makes it clear that the district judge must review the magistrate judge's findings 5 and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 6 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see Schmidt v. Johnstone, 263 7 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review). 8 In the absence of objections, the court adopts the Report and Recommendation. The petition 9 is denied for the reasons stated in the Report and Recommendation. For the same reasons, certificate 10 of appealability is also denied. 11 IT IS SO ORDERED. 12 13 DATED: December 16, 2013 14 15 HON. DANA M. SABRAW United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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