Freeman v. Cate et al

Filing 49

ORDER denying 48 Sixth Request for Extension of Time, adopting 31 Report and Recommendation, and denying 1 Petition. Certificate of Appealability is denied. Signed by Judge Dana M. Sabraw on 12/11/2012.(All non-registered users served via U.S. Mail Service)(aef)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARILYN KAYE FREEMAN,

Case No. 10cv1987 DMS (MDD)
Petitioner,

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ORDER DENYING SIXTH
REQUEST FOR EXTENSION OF
TIME, ADOPTING REPORT AND
RECOMMENDATION, AND
DENYING PETITION

vs.
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MATTHEW CATE,
Respondent.

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Petitioner Marilyn Kaye Freeman, proceeding pro se, filed a petition for writ of habeas corpus

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under 28 U.S.C. § 2254. The case was referred to United States Magistrate Judge Mitchell D. Dembin

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for a report and recommendation pursuant to 28 U.S.C. Section 636(b)(1)(B) and Civil Local Rule

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72.1(d). July 31, 2012, the Magistrate Judge issued a Report and Recommendation recommending

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to deny the Petition.

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Petitioner’s objections to the Report and Recommendation were due on August 22, 2012. The

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due date has been extended five times to accommodate Petitioner’s requests. Most recently, on

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November 26, 2012, in granting Petitioner’s fifth request for extension of time, the due date was

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extended to December 7, 2012. Petitioner was warned no further extensions would be granted. On

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December 7, 2012, Petitioner did not file objections to the Report and Recommendation, but

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requested another extension of time. Petitioner’s sixth request is denied.

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A district judge "may accept, reject, or modify the recommended disposition" on a dispositive

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matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes.
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10cv2179

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Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de novo determination of

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those portions of the [report and recommendation] to which objection is made." 28 U.S.C. §

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636(b)(1). When no objections are filed, the de novo review is waived. Section 636(b)(1) does not

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require review by the district court under a lesser standard. Thomas v. Arn, 474 U.S. 140, 149-50

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(1985). The "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. Reyna-Tapia,

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328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see Schmidt v. Johnstone, 263

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F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review).

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In the absence of objections, the court ADOPTS the Report and Recommendation. The

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petition is DENIED for the reasons stated in the Report and Recommendation. For the same reasons,

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certificate of appealability is also DENIED.

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IT IS SO ORDERED.

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DATED: December 11, 2012

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HON. DANA M. SABRAW
United States District Judge

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