Bernard Flores v. George Neotti

Filing 20

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION 16 ; (2) granting Motion to Dismiss with Prejudice; and (3) denying Certificate of Appealability. Signed by Judge Anthony J. Battaglia on 1/5/12.(All non-registered users served via U.S. Mail Service)(cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BERNARD FLORES,
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Petitioner,
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v.
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GEORGE NEOTTI, Warden,
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Respondent.
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Civil No. 10cv1370 AJB (BGS)

ORDER: (1) ADOPTING REPORT
AND RECOMMENDATION [Doc.
No. 16]; (2) GRANTING MOTION TO
DISMISS WITH PREJUDICE; AND (3)
DENYING CERTIFICATE OF
APPEALABILITY

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Before the Court is Bernard Flores’s Petition for writ of habeas corpus pursuant to 28 U.S.C. §

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2254. Pending before the Court is Respondent’s motion to dismiss the petition, filed March 25, 2011.

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(Doc. No. 14.) Petitioner filed an opposition on April 21, 2011. (Doc. No. 15.)

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The Court referred the matter to Magistrate Judge Bernard G. Skomal, who issued a Report and

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Recommendation (“R&R”) recommending the Court dismiss the Petition on the merits and decline to

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issue a certificate of appealability. (R&R, Doc. No. 16.)

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district judge’s

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duties in connection with a magistrate judge’s report and recommendation. The district judge must

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“make a de novo determination of those portions of the report to which objection is made,” and “may

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accept, reject, or modify, in whole or in part, the finding or recommendations made by the magistrate

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judge.” 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

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However, in the absence of timely objection(s), the Court “need only satisfy itself that there is no clear
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10cv1370

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error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b), Advisory

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Committee Notes (1983); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

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Neither party has timely filed objections to Magistrate Judge Skomal’s Report and Recommen-

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dation. (See Order of September 14, 2011, Granting Petitioner Extension of Time to File Objections,

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Doc. No. 19, (objections due by September 28, 2011).) Having reviewed the report and recommenda-

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tion, the Court finds that Magistrate Judge Skomal’s Report and Recommendation is thorough, well

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reasoned, and contains no clear error. Accordingly, the Court hereby: (1) ADOPTS Magistrate Judge

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Skomal’s Report and Recommendation; (2) GRANTS Defendant’s Motion to Dismiss with Prejudice,

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[Doc. No. 14], and (3) DECLINES to issue a certificate of appealability.1

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IT IS SO ORDERED.

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DATED: January 5, 2012

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Hon. Anthony J. Battaglia
U.S. District Judge

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When a district court enters a final order adverse to the applicant in a habeas proceeding, it
must either issue or deny a certificate of appealability. Rule 11(a) of the Rules Governing Section 2254
Cases. A certificate of appealability is required to appeal a final order in a habeas proceeding. 28 U.S.C.
§ 2253(c)(1)(A). A certificate of appealability is appropriate only where the petitioner makes “a
substantial showing of the denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). Under this standard, the petitioner must demonstrate that reasonable jurists could debate whether
the petition should have been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further. 28 U.S.C. § 2253; Slack v. McDaniel, 529 U.S. 473, 474
(2000).
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