DeArment v. Martel

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATION 9 . The Petitioner's petition is denied in its entirety. A Certificate of Appealability is denied. Signed by Judge Larry Alan Burns on 12/7/11. (All non-registered users served via U.S. Mail Service)(kaj)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD PETER DeARMENT, 12 CASE NO. 10CV1717-LAB (CAB) Petitioner, ORDER ADOPTING REPORT AND RECOMMENDATION vs. 13 14 MICHAEL MARTEL, Warden, Respondent. 15 16 17 DeArment filed a habeas petition on August 13, 2010 challenging his conviction in 18 San Diego County Superior Court of lewd and lascivious conduct upon children. The petition 19 was referred to Magistrate Judge Bencivengo for a report and recommendation. Judge 20 Bencivengo issued a thorough and well-reasoned R&R on October 24, 2011 recommending 21 that DeArment’s petition be denied in its entirety. 22 recommendation. This Order ADOPTS that 23 This Court has jurisdiction to review the R&R pursuant to Rule 72 of the Federal Rules 24 of Civil Procedure. “The district judge must determine de novo any part of the magistrate 25 judge’s disposition that has been properly objected to. The district court may accept, reject, 26 or modify the recommended disposition; receive further evidence; or return the matter to the 27 magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). 28 review the magistrate judge’s findings and recommendations de novo if objection is made, -1- The district judge “must 10CV1717 1 but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 2 banc). 3 Because DeArment is a prisoner and is proceeding pro se, the Court construes his 4 pleadings liberally and affords him the benefit of any doubt. See Karim-Panahi v. L.A. Police 5 Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). That said, “[p]ro se litigants must follow the same 6 rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 7 1987). That includes opposing Judge Bencivengo’s R&R, which DeArment failed to do by 8 the date allowed (November 23, 2011) even though he was warned that “failure to file 9 objections within the specified time may waive the right to raise those objections on appeal.” 10 (R&R at 37.) 11 DeArment’s petition asserts five claims (R&R at 2), each of which Judge Bencivengo’s 12 R&R considers in substantial depth and finds inadequate. DeArment’s failure to oppose the 13 R&R lends gravity to Judge Bencivengo’s conclusions, which the Court has carefully 14 reviewed and here affirms. 15 III. Conclusion 16 The Court ADOPTS the R&R and DENIES DeArment’s petition in its entirety. 17 Because DeArment hasn’t made a “substantial showing of the denial of a constitutional 18 right,” a certificate of appealability is DENIED. 28 U.S.C. § 2253(c)(2); see also Miller-El v. 19 Cockrell, 537 U.S. 322, 327 (2003) (articulating standard for issuance of a certificate of 20 appealability). 21 IT IS SO ORDERED. 22 DATED: December 7, 2011 23 24 HONORABLE LARRY ALAN BURNS United States District Judge 25 26 27 28 -2- 10CV1717

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