Munoz v. Madden

Filing 22

ORDER adopting re 21 Report and Recommendation, Denying Petition, and Denying Certificate of Appealability. Signed by Judge Cathy Ann Bencivengo on 8/29/2017. (All non-registered users served via U.S. Mail Service)(acc) (sjt).

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

ARMANDO MUNOZ,

Case No.: 16cv2447-CAB-NLS
Plaintiff,

12
13

v.

14

ORDER ADOPTING REPORT AND
RECOMMENDATION, DENYING
PETITION, AND DENYING
CERTIFICATE OF
APPEALABILITY

RAYMOND MADDEN,

15

Defendant.

16
17

On September 28, 2016, Petitioner Armando Munoz (“Petitioner”), a state prisoner

18

proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus

19

pursuant to 28 U.S.C. § 2254, [Doc. No. 1.] On June 1, 2017, Respondent filed an answer

20

to the petition and lodged the state court record. [Doc. Nos. 16, 17.] On July 28, 2017,

21

Petitioner filed a traverse. [Doc. No. 20.]

22

On August 4, 2017, Magistrate Judge Nita L. Stormes issued a Report and

23

Recommendation (“Report”), recommending that the Court deny the Petition. [Doc. No.

24

21.] The Report also ordered that any objections were to be filed by August 25, 2017.

25

[Report at 6.] To date, no objection has been filed, nor has there been a request for

26

additional time in which to file an objection.

27
28

A district court’s duties concerning a magistrate judge’s report and
recommendation and a respondent’s objections thereto are set forth in Rule 72(b) of the
1
16cv2447-CAB-NLS

1

Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are

2

filed, the district court is not required to review the magistrate judge’s report and

3

recommendation. The Court reviews de novo those portions of the Report and

4

Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may

5

“accept, reject, or modify, in whole or in part, the findings or recommendations made by

6

the magistrate judge.” Id. However, “[t]he statute makes it clear that the district judge

7

must review the magistrate judge's findings and recommendations de novo if objection is

8

made, but not otherwise.” United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th

9

Cir.2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute

10

requires a district judge to review, de novo, findings and recommendations that the

11

parties themselves accept as correct.” Id.

12

Here, neither party has timely filed objections to the Report. Having reviewed it,

13

the Court finds that it is thorough, well-reasoned, and contains no clear error.

14

Accordingly, the Court HEREBY ADOPTS Magistrate Judge Stormes’ Report and

15

Recommendation [Doc. No. 21] in its entirety. For the reasons stated in the Report,

16

which is incorporated herein by reference, the Court DENIES the Petition. [Doc. No. 1.]

17

Moreover, because the Court does not believe that reasonable jurists would find the

18

Court’s assessment of the constitutional claims debatable or wrong it DECLINES to

19

issue a Certificate of Appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

20
21

IT IS SO ORDERED.
Dated: August 29, 2017

22
23
24
25
26
27
28
2
16cv2447-CAB-NLS