Rivera-Bottzeck v. Ortiz et al

Filing 40

ORDER Affirming and adopting the Report and Recommendation 39 . Court enters final judgment in favor of respondent and terminates this case, by Judge David M. Ebel on 4/21/09.(gmssl, )

I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF COLORADO C i v i l Action No. 06-cv-01434-DME-BNB O T T O F. RIVERA-BOTTZECK, Petitioner, v. J O S E P H ORTIZ, Executive Director of DOC, COLORADO ATTORNEY G E N E R A L (Actually named as: The Attorney General of the State of Colorado), A L L A N STANLEY, Director, Colorado Parole Board, Respondents. O R D E R ADOPTING MAGISTRATE JUDGE'S REPORT AND R E C O M M E N D A T I O N DATED MARCH 5, 2009 P e t i t i o n e r Otto F. Rivera-Bottzeck filed a petition pursuant to 28 U.S.C. § 2254 seeking habeas relief from a Colorado state court judgment revoking a d e f e r r e d judgment imposed after Rivera-Bottzeck pled guilty to one count of s e c u r i t i e s fraud. (Doc. 3 at 1-2.) After revoking the deferred judgment, the s t a t e court sentenced Rivera-Bottzeck to eight years in prison and five years of " m a n d a t o r y parole." (Doc. 3 at 2.) In his federal habeas petition, R i v e r a - B o t t z e c k asserts two claims, alleging 1) there was insufficient evidence t o support the state court's finding that he violated the terms of his deferred j u d g m e n t ; and 2) the state court deprived his of due process and equal p r o t e c t i o n of the law when the revocation hearing was conducted, not by the

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t r i a l judge who accepted Rivera-Bottzeck's guilty plea, but by another judge. (Doc. 3 at 5-6.) I n a report and recommendation dated March 5, 2009, the Magistrate J u d g e recommended denying Rivera-Bottzeck habeas relief, for both procedural a n d substantive reasons. (Doc. 39 at 1, 10-11.) Although the Magistrate Judge i n f o r m e d the parties that they had ten days after the date of service of the report a n d recommendation to file any objections they might have to that report and r e c o m m e n d a t i o n (doc. 39 at 12), neither party has filed any such objections. T h i s Court, then, "is accorded considerable discretion with respect to the t r e a t m e n t of unchallenged magistrate reports. In the absence of timely o b j e c t i o n , the district court may review a magistrate's report under any standard i t deems appropriate." Summers v. State of Utah, 927 F.2d 1165, 1167 (10th C i r . 1991); see also Thomas v. Arn, 474 U.S. 140, 149 (1985) (noting 28 U.S. C. § 636(b)(1)(C) "does not on its face require any review at all, by either the d i s t r i c t court or the court of appeals, of any issue that is not the subject of an objection"). A l t h o u g h not required to do so, the Court has reviewed the Magistrate J u d g e ' s report and recommendation at issue here to insure that there is no " c l e a r error on the face of the record." Strepka v. Sailors, 494 F. Supp.2d 1209, 1 2 1 5 (D. Colo. 2007). Finding no such error, the Court AFFIRMS and ADOPTS i n full the Magistrate Judge's report and recommendation dated March 5, 2009. Because that recommendation resolves all of Rivera-Bottzeck's pending habeas c l a i m s , the Court enters final judgment in favor of Respondents and terminates 2

t h i s case.

Dated: April 21, 2009 BY THE COURT: s / David M. Ebel UNITED STATES CIRCUIT JUDGE

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