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