Andrews v. Knowles et al

Filing 28

ORDER Adopting 27 Report and Recommendation and Dismissing Petition without Prejudice. Signed by Judge Roger T. Benitez on 9/2/2011. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARCUS ANDREWS,

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CASE NO. 10cv2109 BEN (BLM)
Petitioner,

ORDER ADOPTING REPORT
AND RECOMMENDATION
AND DISMISSING PETITION

vs.
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MIKE KNOWLES, Warden, et al.,
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Respondents.
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Petitioner Marcus Andrews 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 and for failure to exhaust his state remedies. Dkt. No. 9. After three extensions of

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time to respond, Petitioner filed an Opposition. Dkt. No. 26.

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Magistrate Judge Barbara L. Major 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 as untimely. Dkt. No. 27. Any objections to the Report and Recommendation were

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due August 24, 2011. Id. Petitioner did not file any objections. Having reviewed the matter

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de novo and for the reasons that follow, the Report and Recommendation is ADOPTED and

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the Petition is DISMISSED with prejudice.

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10cv2109

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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. F ED. R. C IV. P. 72(b)(3); see also 28 U.S.C.

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§636(b)(1).

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recommendation] that has been properly objected to.” F ED. R. C IV. P. 72(b)(3). However,

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“[t]he 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.

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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.13 (9th Cir.

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2005). “Neither the Constitution nor the statute requires a district judge to review, de novo,

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findings and recommendations that the parties themselves accept as correct.” Reyna-Tapia,

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328 F.3d at 1121. Accordingly, the Court may grant Respondent’s motion to dismiss on this

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basis alone.

“[T]he district judge must determine de novo any part of the [report and

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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

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Effective Death Penalty Act’s one-year statute of limitations. The statute of limitations expired

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on January 14, 2010. The Court agrees with the Magistrate Judge’s finding that Petitioner was

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entitled to statutory tolling, but that tolling only extended the deadline until March 17, 2010

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and Petitioner did not file his Petition until September 20, 2010. Furthermore, the Court agrees

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that Petitioner is not entitled to equitable tolling.

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In the absence of any objections and after a de novo review, the Court fully ADOPTS

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Judge Major’s Report and Recommendation. The Petition is DISMISSED with prejudice as

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time barred.

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IT IS SO ORDERED.
DATED: September 2, 2011

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Hon. Roger T. Benitez
United States District Judge

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10cv2109