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Simmons v. Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
Nov 27, 2012
CASE NO. 10CV1795 DMS (BGS) (S.D. Cal. Nov. 27, 2012)

Opinion

CASE NO. 10CV1795 DMS (BGS)

11-27-2012

BARRON SIMMONS, Petitioner, v. MATTHEW CATE, Respondent.


ORDER ADOPTING REPORT AND RECOMMENDATION,

DENYING PETITION, AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Barron Simmons, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. The case was referred to United States Magistrate Judge Bernard G. Skomal for a report and recommendation pursuant to 28 U.S.C. Section 636(b)(1)(B) and Civil Local Rule 72.1(d). The case was initially stayed to give Petitioner time to exhaust his state remedies. After completion of state court proceedings, on August 24, 2012, Respondent filed a response. Petitioner did not file a traverse. On October 10, 2011, the Magistrate Judge issued a Report and Recommendation recommending to deny the Petition. Petitioner has not filed any objections.

A district judge "may accept, reject, or modify the recommended disposition" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). When no objections are filed, the de novo review is waived. Section 636(b)(1) does not require review by the district court under a lesser standard. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The "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); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review).

In the absence of objections, the court ADOPTS the Report and Recommendation. The petition is DENIED for the reasons stated in the Report and Recommendation. For the same reasons, certificate of appealability is also DENIED.

IT IS SO ORDERED.

____________________________

HON. DANA M. SABRAW

United States District Judge


Summaries of

Simmons v. Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
Nov 27, 2012
CASE NO. 10CV1795 DMS (BGS) (S.D. Cal. Nov. 27, 2012)
Case details for

Simmons v. Cate

Case Details

Full title:BARRON SIMMONS, Petitioner, v. MATTHEW CATE, Respondent.

Court:UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Date published: Nov 27, 2012

Citations

CASE NO. 10CV1795 DMS (BGS) (S.D. Cal. Nov. 27, 2012)

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