Palmer v. Madden et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION. Court adopts 12 Report and Recommendation in its entirety. The Petition 1 is denied. Signed by Judge Cynthia Bashant on 10/24/2017. (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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FREDERICK J. PALMER,
Petitioner,

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Case No. 16-cv-2130-BAS-BGS
ORDER:

v.

(1) ADOPTING REPORT AND
RECOMMENDATION [ECF
No. 12] IN ITS ENTIRETY,

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RAYMOND MADDEN,

AND

Respondent.

(2) DENYING PETITION FOR
WRIT OF HABEAS
CORPUS [ECF No. 1]

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On August 22, 2016, Plaintiff Frederick Palmer (the “Petitioner”) filed a

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petition for a writ of habeas corpus (the “Petition”) pursuant to 28 U.S.C. §2254.

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(ECF No. 1.) The Petitioner was sentenced to eleven years imprisonment after a jury

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found Petitioner guilty of selling a controlled substance and misdemeanor resisting

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arrest. (ECF No. 12.) The Petition raises several grounds for relief from his

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conviction and subsequent incarceration by the State of California, including multiple

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errors by the trial court, ineffective assistance of counsel, and unauthorized sentence.

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(ECF No. 1.) The Court referred this matter to United States Magistrate Judge

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Bernard G. Skomal. The State of California filed a response to the Petition on
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February 14, 2017, and lodged various documents concerning Petitioner’s state court

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proceedings. (ECF Nos. 10, 11.)

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On September 22, 2017, Judge Skomal issued a Report and Recommendation

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(“R&R”), recommending that this Court deny relief for all grounds raised in the

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Petition. (ECF No. 12.) The time for filing objections to the R&R expired on

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October 13, 2017. (Id.) To date, neither party has filed any objections.

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I.

ANALYSIS

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

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

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

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statute makes it clear,” however, “that the district judge must review the magistrate

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judge’s findings and recommendations de novo if objection is made, but not

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

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banc) (emphasis in original); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district

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court had no obligation to review the magistrate judge’s report). “Neither the

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Constitution nor the statute requires a district judge to review, de novo, findings and

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recommendations that the parties themselves accept as correct.” Reyna-Tapia, 328

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F.3d at 1121. This legal rule is well-established in the Ninth Circuit and this district.

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See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (“Of course, de novo

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review of a[n] R & R is only required when an objection is made to the R & R.”);

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Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopting

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report in its entirety without review because neither party filed objections to the

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report despite the opportunity to do so); see also Nichols v. Logan, 355 F. Supp. 2d

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1155, 1157 (S.D. Cal. 2004) (Benitez, J.).

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In this case, the deadline for filing objections was October 13, 2017. (ECF No.

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12.) However, no objections have been filed, and neither party has requested

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additional time to do so. Consequently, the Court may adopt the R&R on that basis
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alone. See Reyna-Tapia, 328 F.3d at 1121.

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Nonetheless, having conducted a de novo review of the Petition, the Response,

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and the magistrate judge’s R&R, the Court concludes that Judge Skomal’s reasoning

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is sound. The R&R is thorough, well-reasoned, and correctly concludes that the

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Petitioner has failed to show he is entitled to the issuance of a federal writ of habeas

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corpus. Therefore, the Court hereby approves and ADOPTS IN ITS ENTIRETY

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the R&R. See 28 U.S.C. § 636(b)(1).

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II.

CONCLUSION & ORDER

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

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IN ITS ENTIRETY the R&R. (ECF No. 12.) The Petition (ECF No. 1) is

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DENIED.

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IT IS SO ORDERED.

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DATED: October 24, 2017

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