Austin v. Grounds

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION. Court approves and adopts 15 Report and Recommendation in its entirety, denies Petitioner's writ of habeas corpus, and orders the Clerk to enter judgment. Because reasonable jurists would not find Court's assessment of the claims debatable or wrong, Court declines to issue a certificate of appealability. Signed by Judge Cynthia Bashant on 3/23/2016. (All non-registered users served via U.S. Mail Service) (jah)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 GEORGE V. AUSTIN, Case No. 15-cv-309-BAS(BLM) Plaintiff, 14 ORDER: (1) APPROVING AND ADOPTING REPORT AND RECOMMENDATION IN ITS ENTIRETY; AND 15 v. 16 R. GROUNDS, 17 (2) DIRECTING JUDGMENT BE ENTERED DENYING PETITIONER’S HABEAS PETITION Defendant. 18 19 [ECF No. 15] 20 21 22 On February 12, 2015, Petitioner George V. Austin, a state prisoner proceeding 23 pro se and in forma pauperis, filed this petition for writ of habeas corpus under 28 24 U.S.C. § 2254 challenging his state-court convictions are various grounds. 25 Thereafter, Respondent R. Grounds, in his capacity as Warden, answered the petition. 26 On January 29, 2016, United States Magistrate Judge Barbara Lynn Major issued a 27 Report and Recommendation (“R&R”) recommending that this Court deny 28 Petitioner’s habeas petition and enter judgment accordingly. Judge Major ordered –1– 15cv309 1 any objections to be filed no later than February 26, 2016, and any replies no later 2 than March 25, 2016. To date, no objections have been filed, and neither party has 3 requested additional time to do so. 4 The Court reviews de novo those portions of the R&R to which objections are 5 made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or 6 in part, the findings or recommendations made by the magistrate judge.” Id. But 7 “[t]he statute makes it clear that the district judge must review the magistrate judge’s 8 findings and recommendations de novo if objection is made, but not otherwise.” 9 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) 10 (emphasis in original); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 11 (D. Ariz. 2003) (concluding that where no objections were filed, the district court had 12 no obligation to review the magistrate judge’s report). “Neither the Constitution nor 13 the statute requires a district judge to review, de novo, findings and recommendations 14 that the parties themselves accept as correct.” Id. “When no objections are filed, the 15 de novo review is waived.” Marshall v. Astrue, No. 08cv1735, 2010 WL 841252, at 16 *1 (S.D. Cal. Mar. 10, 2010) (Lorenz, J.) (adopting report in its entirety without 17 review because neither party filed objections to the report despite the opportunity to 18 do so). 19 In this case, the deadline for filing objections was on February 26, 2016. 20 However, no objections have been filed, and neither party has requested additional 21 time to do so. Consequently, the Court may adopt the R&R on that basis alone. See 22 Reyna-Tapia, 328 F.3d at 1121. Having nonetheless conducted a de novo review of 23 the habeas petition, Respondent’s answer, and the R&R, the Court concludes that 24 Judge Major’s reasoning is sound. Accordingly, the Court hereby approves and 25 ADOPTS the R&R in its entirety (ECF No. 15), DENIES Petitioner’s writ of habeas 26 corpus (ECF No. 1), and ORDERS the Clerk of the Court to enter judgment 27 accordingly. See 28 U.S.C. § 636(b)(1). 28 // –2– 15cv309 1 Additionally, a certificate of appealability may issue only if the applicant 2 makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 3 2253(c)(2). Petitioner has made no such showing. Because reasonable jurists would 4 not find the Court’s assessment of the claims debatable or wrong, the Court 5 DECLINES to issue a certificate of appealability. See Slack v. McDaniel, 529 U.S. 6 473, 484 (2000). 7 IT IS SO ORDERED. 8 9 DATED: March 23, 2016 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –3– 15cv309

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