Spencer v. Lattimore et al

Filing 15

ORDER Adopting 14 Report and Recommendation and Denying 13 Motion to Dismiss. Respondents shall file an Answer to the Petition. Signed by Judge Roger T. Benitez on 9/19/2011. (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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JULIE LYNN SPENCER,

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CASE NO. 09cv2541 BEN (CAB)
Petitioner,

ORDER ADOPTING REPORT
AND RECOMMENDATION

vs.
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MARY LATTIMORE, et al.,

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Respondents.

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Petitioner Julie Lynn Spencer filed a Second Amended Petition for writ of habeas

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corpus under 28 U.S.C. § 2254. (Dkt. No. 7.) Respondents moved to dismiss the Petition as

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time-barred by the applicable statute of limitations. (Dkt. No. 13.)

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Magistrate Judge Cathy Ann Bencivengo issued a thoughtful and thorough Report and

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Recommendation recommending Respondents’ motion be denied and that Respondents be

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ordered to file an Answer to the Petition and lodge all documents relating to the case. (Dkt.

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No. 14.) Any objections to the Report and Recommendation were due September 12, 2011.

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(Id.) Respondents did not file any objections. Having reviewed the matter de novo and for the

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reasons that follow, the Report and Recommendation is ADOPTED.

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09cv2541

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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. F ED. R. C IV. P. 72(b)(3); see also 28 U.S.C.

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§636(b)(1).

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recommendation] that has been properly objected to.” F ED. R. C IV. 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) (emphasis in original), cert

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denied, 540 U.S. 900 (2003); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir.

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2005). “Neither the Constitution nor the statute requires a district judge to review, de novo,

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findings and recommendations that the parties themselves accept as correct.” Reyna-Tapia,

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328 F.3d at 1121.

“[T]he district judge must determine de novo any part of the [report and

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In the absence of any objections, the Court fully ADOPTS Judge Bencivengo’s Report

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and Recommendation. Respondents’ Motion to Dismiss is DENIED. Respondents shall file

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an Answer to the Petition.

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IT IS SO ORDERED.

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DATED: September 19, 2011

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Hon. Roger T. Benitez
United States District Judge

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09cv2541