Opinion
20-cv-01783-BAS-BGS
08-04-2021
JOHN DAVID SANCHEZ, Petitioner, v. CRAIG KOENIG, Respondent.
ORDER
(1) APPROVING AND ADOPTING REPORT AND RECOMMENDATION IN ITS ENTIRETY (ECF No. 7);
(2) GRANTING RESPONDENT'S MOTION TO DISMISS (ECF No. 4);
(3) DENYING PETITION OF WRIT OF HABEAS CORPUS; AND
(4) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Cynthia Bashant United States District Judge
Petitioner John David Sanchez is a state prisoner proceeding with counsel. He filed a petition under 28 U.S.C. § 2254, challenging his 2017 conviction in San Diego County Superior Court case number SCE359409. (ECF No. 1.) Respondent moved to dismiss the petition (ECF No. 4), and Petitioner filed a response in opposition (ECF No. 6).
On July 16, 2021, United States Magistrate Judge Bernard G. Skomal issued a Report & Recommendation (“R&R”) recommending this Court grant Defendant's motion to dismiss. (ECF No. 7.) Judge Skomal ordered that any objections to the R&R be filed no later than August 2, 2021. (Id. 31:1-3.) To date, Plaintiff has not filed any objections or requested for additional time to do so.
The Court reviews de novo those portions of the R&R 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. But “[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); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district court had no obligation to review the magistrate judge's report). “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. “When no objections are filed, the de novo review is waived.” Marshall v. Astrue, No. 08-cv-1735, 2010 WL 841252, at *1 (S.D. Cal. Mar. 10, 2010) (Lorenz, J.) (adopting report in its entirety without review because neither party filed objections to the report despite the opportunity to do so).
In this case, the deadline for filing objections was August 2, 2021. However, the parties have not filed any objections or requests for additional time to do so. Consequently, the Court may adopt the R&R on that basis alone. See Reyna-Tapia, 328 F.3d at 1121. Having nonetheless reviewed the R&R, the Court agrees with the R&R's recommendations. Thus, the Court hereby approves and ADOPTS the R&R in its entirety (ECF No. 7). The Court therefore GRANTS Defendant's motion to dismiss (ECF No. 4) and DISMISSES the Petition (ECF No. 1).
In addition, a certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Petitioner has made no such showing. Because reasonable jurists could not debate whether “the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further, '” the Court DECLINES to issue a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
IT IS SO ORDERED.