Mario Marquez v. M D Biter et al

Filing 33

ORDER ACCEPTING REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Michael W. Fitzgerald for Report and Recommendation (Issued), 23 . (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MARIO MARQUEZ,

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Petitioner,
v.
M.D. BITER, WARDEN,
Respondent.

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NO. EDCV 13-00019-MWF (MAN)

ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED STATES
MAGISTRATE JUDGE

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas

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Corpus (“Petition”), all of the records herein, the Report and Recommendation of United States

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Magistrate Judge (“Report”), and Petitioner’s Objections to the Report. Pursuant to 28 U.S.C. §

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636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has conducted a de novo review of those

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portions of the Report to which objections have been stated.

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Petitioner has appended to his Objections several documents that were not presented to

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the Magistrate Judge. A district court has discretion, but is not required, to consider evidence or

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arguments presented for the first time in objections to a report and recommendation. See Brown

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v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621-22 (9th

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Cir. 2000).

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concludes that they do not affect or alter the analysis and conclusions set forth in the Report.

The Court has exercised its discretion to consider these new documents, but

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Having completed its review, the Court concludes that the Petition is untimely. The Court

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accepts and adopts the Report and the findings of fact, conclusions of law, and recommendations

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therein. Accordingly, IT IS ORDERED that: (1) Respondent’s motion to dismiss is GRANTED; and

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(2) Judgment shall be entered dismissing this action with prejudice.

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The Court notes that the date of February 24, 2011, likely should be July 24, 2011. (R&R

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at 4, 12). Similarly, there appears to be a minor inconsistency between May 7, 2012 (R&R at 13)

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and May 9, 2012 (R&R at 6). Theses dates do not affect the thorough reasoning of the Report

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and Recommendation as to timeliness.

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IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment
herein on the parties.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: April 29, 2014.

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MICHAEL W. FITZGERALD
UNITED STATES DISTRICT JUDGE

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