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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FREDERICK J. PALMER, Petitioner, 12 13 Case No. 16-cv-2130-BAS-BGS ORDER: v. (1) ADOPTING REPORT AND RECOMMENDATION [ECF No. 12] IN ITS ENTIRETY, 14 15 16 RAYMOND MADDEN, AND Respondent. (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS [ECF No. 1] 17 18 19 20 On August 22, 2016, Plaintiff Frederick Palmer (the “Petitioner”) filed a 21 petition for a writ of habeas corpus (the “Petition”) pursuant to 28 U.S.C. §2254. 22 (ECF No. 1.) The Petitioner was sentenced to eleven years imprisonment after a jury 23 found Petitioner guilty of selling a controlled substance and misdemeanor resisting 24 arrest. (ECF No. 12.) The Petition raises several grounds for relief from his 25 conviction and subsequent incarceration by the State of California, including multiple 26 errors by the trial court, ineffective assistance of counsel, and unauthorized sentence. 27 (ECF No. 1.) The Court referred this matter to United States Magistrate Judge 28 Bernard G. Skomal. The State of California filed a response to the Petition on –1– 16cv2130 1 February 14, 2017, and lodged various documents concerning Petitioner’s state court 2 proceedings. (ECF Nos. 10, 11.) 3 On September 22, 2017, Judge Skomal issued a Report and Recommendation 4 (“R&R”), recommending that this Court deny relief for all grounds raised in the 5 Petition. (ECF No. 12.) The time for filing objections to the R&R expired on 6 October 13, 2017. (Id.) To date, neither party has filed any objections. 7 I. ANALYSIS 8 The Court reviews de novo those portions of an 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. “The 11 statute makes it clear,” however, “that the district judge must review the magistrate 12 judge’s findings and recommendations de novo if objection is made, but not 13 otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 14 banc) (emphasis in original); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 15 1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district 16 court had no obligation to review the magistrate judge’s report). “Neither the 17 Constitution nor the statute requires a district judge to review, de novo, findings and 18 recommendations that the parties themselves accept as correct.” Reyna-Tapia, 328 19 F.3d at 1121. This legal rule is well-established in the Ninth Circuit and this district. 20 See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (“Of course, de novo 21 review of a[n] R & R is only required when an objection is made to the R & R.”); 22 Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopting 23 report in its entirety without review because neither party filed objections to the 24 report despite the opportunity to do so); see also Nichols v. Logan, 355 F. Supp. 2d 25 1155, 1157 (S.D. Cal. 2004) (Benitez, J.). 26 In this case, the deadline for filing objections was October 13, 2017. (ECF No. 27 12.) However, no objections have been filed, and neither party has requested 28 additional time to do so. Consequently, the Court may adopt the R&R on that basis –2– 16cv2130 1 alone. See Reyna-Tapia, 328 F.3d at 1121. 2 Nonetheless, having conducted a de novo review of the Petition, the Response, 3 and the magistrate judge’s R&R, the Court concludes that Judge Skomal’s reasoning 4 is sound. The R&R is thorough, well-reasoned, and correctly concludes that the 5 Petitioner has failed to show he is entitled to the issuance of a federal writ of habeas 6 corpus. Therefore, the Court hereby approves and ADOPTS IN ITS ENTIRETY 7 the R&R. See 28 U.S.C. § 636(b)(1). 8 II. CONCLUSION & ORDER 9 Having reviewed the R&R and there being no objections, the Court ADOPTS 10 IN ITS ENTIRETY the R&R. (ECF No. 12.) The Petition (ECF No. 1) is 11 DENIED. 12 IT IS SO ORDERED. 13 14 DATED: October 24, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –3– 16cv2130

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