Garibay v. Cavazos

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION and Dismissing Petition. Signed by Judge Roger T. Benitez on 4/13/2011.(All non-registered users served via U.S. Mail Service)(knh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANA GARIBAY,

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CASE NO. 10cv1645 BEN (JMA)
Petitioner,

ORDER ADOPTING REPORT
AND RECOMMENDATION
AND DISMISSING PETITION

vs.
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JAVIER CAVAZOS, Warden, et aI.,
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Respondents.
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Petitioner Ana Garibay filed a petition for writ of habeas corpus under 28 U.S.C. §

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2254. Respondent moved to dismiss the Petition as time-barred by the applicable statute of

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limitations. Dkt. No. 11. Petitioner did not oppose the motion.

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Magistrate Judge Jan M. Adler issued a thoughtful and thorough Report and

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Recommendation recommending Respondent's motion be granted and the Petition be

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dismissed. Dkt. No. 12. Any objections to the Report and Recommendation were due March

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28,2011. ld. Petitioner did not file any objections. Having reviewed the matter de novo and

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for the reasons that follow, the Report and Recommendation is ADOPTED and the Petition

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is DISMISSED.

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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.

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§636(b)(1).

FED.

R. CIV. P. 72(b)(3); see also 28 U.S.C.

"[T]he district judge must determine de novo any part of the [report and
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1 recommendation] that has been properly objected to." FED. R. CIV. P. 72(b)(3). However,
2 "[t]he statute makes it clear that the district judge must review the magistrate judge's findings
3 and recommendations de novo ij objection is made, but not otherwise." United States v.
4 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.B (9th Cir.

6 2005). "Neither the Constitution nor the statute requires a district judge to review, de novo,
7 findings and recommendations that the parties themselves accept as correct." Reyna-Tapia,
8 328 F.3d at 1121. Accordingly, the Court may grant Respondent's motion to dismiss on this
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The Court has, however, reviewed the matter de novo and agrees that the motion to

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dismiss should be granted because the Petition is time-barred by the Antiterrorism and

12 Effective Death Penalty Act's one-year statute oflimitations. The statute oflimitations expired
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on May 27, 2010 and Petitioner did not file her Petition until July 28, 2010. Furthermore,

14 Petitioner is not entitled to statutory tolling and she has not demonstrated she is entitled to
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equitable tolling.
In the absence of any objections and after a de novo review, the Court fully ADOPTS

17 Judge Adler's Report. The Petition is DISMISSED.
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IT IS SO ORDERED.

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J, 2011

DATED: APril/

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United States District Judge

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