Thornton v. Oliver

Filing 89

ORDER ADOPTING REPORT AND RECOMMENDATION [Doc. No. 75 ] and denying Second Amended Petition [Doc. No. 42 ]. Certificate of Appealability denied. Signed by Judge Cathy Ann Bencivengo on 09/4/2012.(All non-registered users served via U.S. Mail Service)(yeb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAM CECIL THORNTON,

Civil No.
Petitioner,

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ORDER ADOPTING REPORT AND
RECOMMENDATION [Doc. No. 75] AND
DENYING SECOND AMENDED
PETITION [Doc. No. 42]

v.
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11cv338-CAB(DHB)

MATTHEW CATE, Secretary, et al.,

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Respondents.

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On February 17, 2011, Petitioner William Cecil Thornton (“Petitioner”), a state prisoner

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proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28

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U.S.C. § 2254, [Doc. No. 1.] On September 29, 2011, Petitioner filed a Second Amended Petition.

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[Doc. No. 42.] On March 7, 2012, Magistrate Judge Louisa Porter issued a Report and Recommendation

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(“Report”) recommending that the Petition be denied. [Doc. No. 75.] The Report also ordered that any

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objections were to be filed by April 6, 2012. [Report at 29.]

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for an extension of time to file objections. [Doc. No. 78.] The motion was granted and Petitioner was

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given until May 6, 2012 to file an objection. [Doc. No. 80.]1 On April 18, 2012, Petitioner filed a second

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motion for extension of time to file an objection. [Doc. No. 83.] That motion was also granted and

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Petitioner was given until June 5, 2012 to file an objection. To date, no objection has been filed, nor

On April 2, 2012, Petitioner filed a motion

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On April 4, 2012, Petitioner also filed a motion to stay and abey the Petition. [Doc. No. 79.] On
April 5, 2012, the case was transferred to Magistrate Judge David H. Bartick. [Doc. No. 81.] On May 29,
2012, Magistrate Judge Bartick issued a Report and Recommendation recommending that the Court
deny Petitioner’s motion to stay and abey. [Doc. No. 86.] On September 4, 2012, this Court adopted
Judge Bartick’s report and recommendation and denied the motion to stay and abey. [Doc. No. 88.]
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11cv338

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have there been any additional requests for an extension of time in which to file an objection.

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A district court’s duties concerning a magistrate judge’s report and recommendation and a

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respondent’s objections thereto are set forth in Rule 72(b) of the Federal rules of Civil Procedure and 28

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U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the

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magistrate judge’s report and recommendation. The Court reviews de novo those portions of the Report

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and Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may “accept,

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reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”

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Id. However, “[t]he statute makes it clear that the district judge must review the magistrate judge's

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findings 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). “Neither the

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Constitution nor the statute requires a district judge to review, de novo, findings and recommendations

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that the parties themselves accept as correct.” Id.

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The Court, therefore, accepts Judge Porter’s recommendation, and ADOPTS the Report [Doc.

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No. 75] in its entirety. For the reasons stated in the Report, which is incorporated herein by reference,

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the Court DISMISSES the Second Amended Petition [Doc. No. 42] WITH PREJUDICE.

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Moreover, because the Court does not believe that reasonable jurists would find the Court’s

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assessment of the constitutional claims debatable or wrong it DECLINES to issue a Certificate of

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Appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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DATED: September 4, 2012
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CATHY ANN BENCIVENGO
United States District Judge

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11cv338