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).

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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

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