Opinion
Case No.: 16cv2447-CAB-NLS
08-29-2017
ARMANDO MUNOZ, Plaintiff, v. RAYMOND MADDEN, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING PETITION, AND DENYING CERTIFICATE OF APPEALABILITY
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
/s/_________
Hon. Cathy Ann Bencivengo
United States District Judge