Gullick v. Bock et al

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATION 32 . Based thereon, the petition at 1 is DENIED as time barred. Signed by Judge John W Sedwick on 2/5/10. (DMT)

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DEWEY DERALD GULLICK, Petitioner, vs. DEPUTY WARDEN BOCK, et al., Respondents. ) ) ) ) ) ) ) ) ) ) 3:07-cv-8131 JWS (HCE) ORDER FROM CHAMBERS [ Re: Petition at doc. 1; Report and Recommendation at doc. 32] I. MOTION PRESENTED Pursuant to 28 U.S.C. 2254, petitioner seeks a writ of habeas corpus. Following extensive briefing and a thorough examination of the matter, Magistrate Judge Estrada filed a report and recommendation at docket 32 in which he recommends that the petition be dismissed as untimely under AEDPA. After receiving an extension of time, petitioner filed objections to the report at docket 35 to which respondents replied at docket 36. II. STANDARD OF REVIEW The district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate."1 When reviewing a magistrate judge's 1 28 U.S.C. 636(b)(1). report and recommendation in a case such as this one, the district court conducts de novo review of all conclusions of law,2 and any findings of fact to which objections have been made.3 Uncontested findings of fact are reviewed for clear error.4 III. DISCUSSION Having reviewed the parties' papers and applied the standard of review articulated above, this court concludes that the magistrate judge correctly found the facts and applied the law. Nothing in the objections which relates to matters presented to the magistrate judge casts any doubt on the correctness of his recommended findings of fact and conclusions of law. In his objections, petitioner has raised arguments and contentions which were not presented to the magistrate judge. By failing to raise these arguments before the magistrate judge petitioner has waived them. Guzman-Ruiz v. Hernandez-Colon, 406 F.3d 31, 36 (1st Cir. 2005). To hold otherwise would contravene the purpose of the statute authorizing magistrate judges to consider habeas petitions subject to final review by the district court. See 28 U.S.C. 636(b)(1). Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989), overruled on other grounds by Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996). 3 2 28 U.S.C. 636(b)(1). Taberer v. Armstrong World Industries, Inc., 954 F.2d 888, 906 (3d Cir. 1992). 4 -2- IV. CONCLUSION For the reasons above, this court approves Magistrate Judge Estrada's thorough and well-reasoned report and adopts his recommended findings and conclusions. Based thereon, the petition at docket 1 is DENIED as time barred. DATED this 5th day of February 2010. /s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE -3-

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