Bernie Gomes v. People of the State of California

Filing 17

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Josephine L. Staton. Accordingly, having made a de novo determination of those portions of the Report and Recommendation to which objections have been filed, the C ourt concurs with and accepts the Magistrate Judge's recommendation that the Petition be denied as untimely. IT THEREFORE IS ORDERED that Respondent's motion to dismiss is GRANTED and Judgment be entered denying the Petition and dismissing this action with prejudice. 8 , 13 (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BERNIE GOMES,

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Petitioner,

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vs.

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JOE A. LIZARRAGA, Warden,

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Respondent.

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Case No. CV 14-1277-JLS (JPR)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF U.S.
MAGISTRATE JUDGE

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the

17 Petition, the records and files of this case, and the Report and
18 Recommendation (“R&R”) of the U.S. Magistrate Judge.

The R&R

19 recommended that the Petition be dismissed because it was
20 untimely by more than four months.

On September 22, 2014,

21 Petitioner filed objections to the R&R, in which he mostly
22 repeats arguments in the Petition and Reply or cites cases for
23 general principles of law without applying that law to the facts
24 of his case.

The Court has considered and rejected those

25 objections.1
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In his “Objection # 2,” Petitioner claims, without
explanation, that his California Supreme Court habeas petition
(continued...)
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Accordingly, having made a de novo determination of those

2 portions of the Report and Recommendation to which objections
3 have been filed, the Court concurs with and accepts the
4 Magistrate Judge’s recommendation that the Petition be denied as
5 untimely.

IT THEREFORE IS ORDERED that Respondent’s motion to

6 dismiss is GRANTED and Judgment be entered denying the Petition
7 and dismissing this action with prejudice.
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9 DATED: December 3, 2014
JOSEPHINE L. STATON
U.S. DISTRICT JUDGE

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(...continued)

23 was in fact properly filed “because the court treated it as a
motion for post conviction relief.” (Objections at 2.) But as
24 the R&R noted, his supreme court habeas petition was rejected as
25 untimely (R&R at 3-4, 10), and the court’s notice to that effect
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nowhere mentions any motion for post-conviction relief; indeed,
the letter is captioned, “Re: C074624 – In re Bernie Gomes on
Habeas Corpus” (see Lodged Ex. 5). The Court’s review of the
California Appellate Courts’ Case Information website confirms
that Petitioner never properly filed anything in the state
supreme court.
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