Gray v. Ryan et al

Filing 64

ORDER Adopting 47 Report and Recommendation and Denying Petititon. Signed by Judge Roger T. Benitez on 9/21/2012. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RUFUS GRAY, JR.,

CASE NO. 09cv709 BEN (KSC)
Petitioner,

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ORDER ADOPTING REPORT
AND RECOMMENDATION
AND DENYING PETITION

vs.
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STUART RYAN, et al.,
Respondents.

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Petitioner Rufus Gray, Jr., a state prisoner proceeding pro se, has filed a Second

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Amended Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254. Respondent moved

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to dismiss. The motion was denied and Respondent filed an answer. Gray filed a traverse.

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On November 3, 2011, United States District Judge (then United States Magistrate

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Judge) Cathy Ann Bencivengo issued a Report and Recommendation, recommending that the

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petition be denied. On December 5, 2011 Petitioner sought an extension of time within which

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to file Objections. Five more times Petitioner sought extensions (April 5, 2012; April 16,

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2012; May 10, 2012; July 3, 2012; August 13, 2012). The last extension granted Petitioner

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until August 10, 2012 to file objections and cautioned that further extensions were unlikely.

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As of September 20, 2012, Petitioner has still not filed objections and the Court hereby denies

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his request for further extensions of time. For the reasons stated below, the Court adopts the

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Report and Recommendation in its entirety and denies the Second Amended Petition.

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A district judge “may accept, reject, or modify the recommended disposition” of a

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Magistrate Judge on a dispositive matter. FED. R. CIV. P. 72(b)(3); see also 28 U.S.C.
-1-

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§636(b)(1). “[T]he district judge must determine de novo any part of the [report and

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recommendation] that has been properly objected to.” FED. R. CIV. P. 72(b)(3). However,

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“[t]he statute makes it clear that the district judge must review the magistrate judge’s findings

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and recommendations de novo if objection is made, but not otherwise.” United States v.

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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), cert denied, 540 U.S. 900 (2003)

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(emphasis in original); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005).

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“Neither the Constitution nor the statute requires a district judge to review, de novo, findings

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and recommendations that the parties themselves accept as correct.” Reyna-Tapia, 328 F.3d

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at 1121.

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In the absence of any objections, the Court adopts the Report and Recommendation in
its entirety and denies Petitioner’s Second Amended Petition for a Writ of Habeas Corpus.

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The Clerk shall close the file.

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IT IS SO ORDERED.

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DATED: September 21, 2012

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Hon. Roger T. Benitez
United States District Judge

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