Bell v. Paramo et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATION re 26 Report and Recommendation. Court approves and adopts 26 Report and Recommendation in its entirety, denies Petitioner's 1 petition for writ of habeas corpus, and orders the Clerk to enter jud gment. 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 3/29/2017. (All non-registered users served via U.S. Mail Service) (jah)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

EDDIE LEE BELL,

Case No. 16-cv-00727-BAS-PCL
Petitioner,

12

ORDER:
(1) APPROVING AND
ADOPTING REPORT AND
RECOMMENDATION IN ITS
ENTIRETY (ECF No. 26); AND

13

v.
14
15

DANIEL PARAMO, Warden, et al.,

(2) DIRECTING JUDGMENT BE
ENTERED DENYING
PETITIONER’S HABEAS
PETITION

Respondents.

16
17
18

Petitioner Eddie Lee Bell, a state prisoner proceeding pro se and in forma

19

pauperis, filed this petition for writ of habeas corpus under 28 U.S.C. § 2254.

20

Petitioner was convicted in 1997 for making a terrorist threat. Because of his prior

21

felony convictions, Petitioner’s sentence was enhanced under California’s Three

22

Strikes sentencing law to 29 years to life. He is now challenging the denial of his

23

California Proposition 36 petition to recall his sentence.1

24
25
26
27
28

California Proposition 36 “diluted the three strikes law by reserving the life sentence for
cases where the current crime is a serious or violent felony . . . [and] created a postconviction
release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed
pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not
disqualified, may have his or her sentence recalled and be sentenced as a second strike offender
unless the court determines that resentencing would pose an unreasonable risk of danger to public
safety.” People v. Yearwood, 213 Cal. App. 4th 161, 167–68 (2013).
1

–1–

16cv0727

1

On January 13, 2017, United States Magistrate Judge Peter C. Lewis issued a

2

Report and Recommendation (“R&R”) recommending that this Court deny

3

Petitioner’s habeas petition and enter judgment accordingly. (ECF No. 26.) Judge

4

Lewis ordered that any objections to the R&R be filed no later than February 10,

5

2017, and that any replies to the objections be filed no later than February 24, 2017.

6

(Id. 14:5–9.) To date, no objections have been filed, and neither party has requested

7

additional time to do so.

8

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

9

made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or

10

in part, the findings or recommendations made by the magistrate judge.” Id. But

11

“[t]he statute makes it clear that the district judge must review the magistrate judge’s

12

findings and recommendations de novo if objection is made, but not otherwise.”

13

United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see

14

also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding

15

that where no objections were filed, the district court had no obligation to review the

16

magistrate judge’s report). “Neither the Constitution nor the statute requires a district

17

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

18

accept as correct.” Id. “When no objections are filed, the de novo review is waived.”

19

Marshall v. Astrue, No. 08-cv-1735, 2010 WL 841252, at *1 (S.D. Cal. Mar. 10,

20

2010) (Lorenz, J.) (adopting report in its entirety without review because neither

21

party filed objections to the report despite the opportunity to do so).

22

In this case, the deadline for filing objections was February 10, 2017.

23

However, no objections have been filed, and neither party has requested additional

24

time to do so. Consequently, the Court may adopt the R&R on that basis alone. See

25

Reyna-Tapia, 328 F.3d at 1121. Having nonetheless conducted a de novo review of

26

the habeas petition, Respondent’s response, the lodgement, and the R&R, the Court

27

concludes that Judge Lewis’s reasoning is sound.

28

//
–2–

16cv0727

1

Hence, the Court hereby approves and ADOPTS the R&R in its entirety (ECF

2

No. 26), DENIES Petitioner’s petition for writ of habeas corpus (ECF No. 1), and

3

ORDERS the Clerk of the Court to enter judgment accordingly. See 28 U.S.C. §

4

636(b)(1).

5

In addition, a certificate of appealability may issue only if the applicant makes

6

a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

7

Petitioner has made no such showing. Because reasonable jurists would not find the

8

Court’s assessment of the claims debatable or wrong, the Court DECLINES to issue

9

a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

10

IT IS SO ORDERED.

11
12

DATED: March 29, 2017

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
–3–

16cv0727