Munoz v. Madden
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).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No.: 16cv2447-CAB-NLS
ORDER ADOPTING REPORT AND
PETITION, AND DENYING
On September 28, 2016, Petitioner Armando Munoz (“Petitioner”), a state prisoner
proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254, [Doc. No. 1.] On June 1, 2017, Respondent filed an answer
to the petition and lodged the state court record. [Doc. Nos. 16, 17.] On July 28, 2017,
Petitioner filed a traverse. [Doc. No. 20.]
On August 4, 2017, Magistrate Judge Nita L. Stormes issued a Report and
Recommendation (“Report”), recommending that the Court deny the Petition. [Doc. No.
21.] The Report also ordered that any objections were to be filed by August 25, 2017.
[Report at 6.] To date, no objection has been filed, nor has there been a request for
additional time in which to file an objection.
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
Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are
filed, the district court is not required to review the magistrate judge’s report and
recommendation. The Court reviews de novo those portions of the Report and
Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may
“accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” Id. However, “[t]he statute makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo if objection is
made, but not otherwise.” United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th
Cir.2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute
requires a district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct.” Id.
Here, neither party has timely filed objections to the Report. Having reviewed it,
the Court finds that it is thorough, well-reasoned, and contains no clear error.
Accordingly, the Court HEREBY ADOPTS Magistrate Judge Stormes’ Report and
Recommendation [Doc. No. 21] in its entirety. For the reasons stated in the Report,
which is incorporated herein by reference, the Court DENIES the Petition. [Doc. No. 1.]
Moreover, because the Court does not believe that reasonable jurists would find the
Court’s assessment of the constitutional claims debatable or wrong it DECLINES to
issue a Certificate of Appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS SO ORDERED.
Dated: August 29, 2017
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