Charity v. Phelps et al

Filing 18

ORDER 17 ADOPTING REPORT AND RECOMMENDATIONS, Dismissing Petition for Writ of Habeas Corpus, and Denying Certificate of Appealability. Signed by Judge Janis L. Sammartino on 3/16/10.(All non-registered users served via U.S. Mail Service)(mkz)(av1).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. PERRY PHELPS, Respondent. TIMMY O'NEIL CHARITY, Petitioner, CASE NO. 08-CV-1530 JLS (POR) ORDER: (1) ADOPTING REPORT AND RECOMMENDATION, (2) DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, AND (3) DENYING CERTIFICATE OF APPEALABILITY (Doc. No. 17)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Presently before the Court is Timmy O'Neil Charity's (petitioner) petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and Magistrate Judge William McCurine, Jr.'s Report and Recommendation ("R&R") advising this Court to dismiss the petition. (Doc. Nos. 1 & 17.) Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth the duties of a district court in connection with a magistrate judge's report and recommendation. "The district court must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. 636(b)(1)(c); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980). However, in the absence of timely objection, the Court need "only satisfy itself that there is no clear error on the face of the record." Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)). -108cv1530

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In this case, Petitioner has not timely filed objections to Magistrate Judge McCurine's R&R. Thus, the Court has reviewed the R&R for clear error. Finding none, and noting that Judge McCurine's Order is thorough, well reasoned, and no contains no clear error, the Court ADOPTS the R&R in full and DISMISSES the petition as barred by the statute of limitations. Finally, this Court is under an obligation to determine whether a certificate of appealability should issue in this matter. A certificate of appealability is authorized "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court must either (1) grant the certificate of appealability indicating which issues satisfy the required showing or (2) state why a certificate should not issue. Fed. R. App. P. 22(b). Since this petition was filed well outside of the limitations period, the Court finds that the Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, no certificate of appealability should issue. IT IS SO ORDERED.

DATED: March 16, 2010 Honorable Janis L. Sammartino United States District Judge

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08cv1530