Harrison v. San Diego Superior Court et al

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION. Court adopts in full 8 Report and Recommendation and denies the Petition. Court also denies a Certificate of Appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Judge Irma E. Gonzalez on 6/10/2013.(All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CORNELL HARRISON,

CASE NO. 12-CV-2588 - IEG (WVG)
Petitioner,

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ORDER:
(1) ADOPTING IN FULL REPORT
AND RECOMMENDATION;

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vs.

[Doc. No. 8]

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(2) DENYING PETITION FOR
WRIT OF HABEAS CORPUS; AND

C. TAMKEN, Warden,

[Doc. No. 1]

Respondent.

(3) DENYING CERTIFICATE OF
APPEALABILITY

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Before the Court is Petitioner Cornell Harrison’s Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254 (the “Petition”). [Doc. No. 1.] Petitioner pled

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guilty in San Diego County Superior Court to one count of corporal punishment to a

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spouse and was sentenced to nine years in state prison and $1,800 in restitution. [Id.

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at 1.] The Petition challenges the propriety of the ordered restitution. [Id. at 8.]

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Respondent filed a motion to dismiss the Petition as barred by the statute of

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limitations applicable under the Antiterrorism and Effective Death Penalty Act

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(“AEDPA”). [Doc. No. 6 at 3-5.]

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The Court referred the matter to Magistrate Judge William V. Gallo, who
issued a Report and Recommendation (“R & R”) recommending that the Court grant
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12cv2588

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Respondent’s motion and dismiss the Petition as barred by the statute of limitations

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applicable under AEDPA. [See id. at 12.] The time for filing objections to the R &

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R expired on April 14, 2013. [See id. at 13.] Petitioner has not filed any objections.

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DISCUSSION

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The Court reviews de novo those portions of the R & R to which objections

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are made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in

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

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Id. But “[t]he statute makes it clear that the district judge must review the magistrate

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judge’s findings and recommendations de novo if objection is made, but not

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otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en

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banc) (emphasis in original). “Neither the Constitution nor the statute requires a

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district judge to review, de novo, findings and recommendations that the parties

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themselves accept as correct.” Id.

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In this case, the deadline for objections passed over a month ago and no

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objections have been filed. Accordingly, the Court may adopt the R & R on that

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basis alone. See id. Having reviewed the Petition, Respondent’s motion to dismiss,

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and the R & R, the Court hereby approves and ADOPTS IN FULL the R & R. See

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28 U.S.C. § 636(b)(1).
CONCLUSION

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Having reviewed the R & R and there being no objections, the Court

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ADOPTS IN FULL the R & R and DENIES the Petition. The Court also DENIES

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a certificate of appealability because Petitioner has not “made a substantial showing

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of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2).

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IT IS SO ORDERED.
DATED:

June 10, 2013

____________________________
IRMA E. GONZALEZ
United States District Judge

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12cv2588