Johnson v. Madden

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATION. Court approves and adopts 11 Report and Recommendation in its entirety, and denies Petitioner's writ of habeas corpus. Court orders the Clerk to enter judgment accordingly. A certificate of appealabil ity may issue only if the applicant makes a substantial showing of a denial of a constitutional right. Petitioner has made no such showing. Because reasonable jurists would not find the Court's assessment of the claims debatable or wrong, Court declines to issue a certificate of appealability. Signed by Judge Cynthia Bashant on 9/16/2016. (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 FRANK JOHNSON, Petitioner, 14 15 16 17 Case No. 15-cv-1559-BAS(PCL) ORDER: (1) APPROVING AND ADOPTING REPORT AND RECOMMENDATION IN ITS ENTIRETY; AND v. R. MADDEN, Warden, (2) DIRECTING JUDGMENT BE ENTERED DENYING PETITIONER’S HABEAS PETITION Respondent. 18 19 [ECF No. 11] 20 21 22 On July 13, 2015, Petitioner Frank Johnson, a state prisoner proceeding pro 23 se, filed this petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging a 24 prison disciplinary decision. Thereafter, Respondent R. Madden, in his capacity as 25 Warden, responded to the petition. On August 4, 2016, United States Magistrate 26 Judge Peter C. Lewis issued a Report and Recommendation (“R&R”) recommending 27 that this Court deny Petitioner’s habeas petition and enter judgment accordingly. 28 Judge Lewis ordered any objections to be filed no later than August 18, 2016, and –1– 15cv1559 1 any replies no later than September 1, 2016. To date, no objections have been filed, 2 and neither party has requested additional time to do so. 3 The Court reviews de novo those portions of the R&R to which objections are 4 made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or 5 in part, the findings or recommendations made by the magistrate judge.” Id. But 6 “[t]he statute makes it clear that the district judge must review the magistrate judge’s 7 findings and recommendations de novo if objection is made, but not otherwise.” 8 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) 9 (emphasis in original); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 10 (D. Ariz. 2003) (concluding that where no objections were filed, the district court had 11 no obligation to review the magistrate judge’s report). “Neither the Constitution nor 12 the statute requires a district judge to review, de novo, findings and recommendations 13 that the parties themselves accept as correct.” Id. “When no objections are filed, the 14 de novo review is waived.” Marshall v. Astrue, No. 08cv1735, 2010 WL 841252, at 15 *1 (S.D. Cal. Mar. 10, 2010) (Lorenz, J.) (adopting report in its entirety without 16 review because neither party filed objections to the report despite the opportunity to 17 do so). 18 In this case, the deadline for filing objections was on August 18, 2016. 19 However, no objections have been filed, and neither party has requested additional 20 time to do so. Consequently, the Court may adopt the R&R on that basis alone. See 21 Reyna-Tapia, 328 F.3d at 1121. Having nonetheless conducted a de novo review of 22 the habeas petition, Respondent’s response, the lodgment, and the R&R, the Court 23 concludes that Judge Lewis’ reasoning is sound. Accordingly, the Court hereby 24 approves and ADOPTS the R&R in its entirety (ECF No. 11), DENIES Petitioner’s 25 writ of habeas corpus (ECF No. 1), and ORDERS the Clerk of the Court to enter 26 judgment accordingly. See 28 U.S.C. § 636(b)(1). 27 Additionally, a certificate of appealability may issue only if the applicant 28 makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § –2– 15cv1559 1 2253(c)(2). Petitioner has made no such showing. Because reasonable jurists would 2 not find the Court’s assessment of the claims debatable or wrong, the Court 3 DECLINES to issue a certificate of appealability. See Slack v. McDaniel, 529 U.S. 4 473, 484 (2000). 5 IT IS SO ORDERED. 6 7 DATED: September 16, 2016 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –3– 15cv1559

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