Figueroa v. Lea

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATION. Petition dismissed and Certificate of Appealability denied. Signed by Judge Roger T. Benitez on 2/25/2015.(All non-registered users served via U.S. Mail Service)(knb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 JOSE FIGUEROA, 11 vs. 12 13 CASE NO. 12CV2882 BEN (BLM) Petitioner, MELISSA LEA, Warden, et al. 14 Respondents. ORDER: • ADOPTING REPORT AND RECOMMENDATION • DISMISSING PETITION • DENYING CERTIFICATE OF APPEALABILITY 15 16 Petitioner Jose Figueroa, a state prisoner proceeding pro se, commenced this 17 action with the filing of a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 18 2254. (Docket No. 1). He subsequently filed a first amended petition 19 (“the Petition”). (Docket No. 9). Respondents filed a motion to dismiss the Petition 20 as untimely. (Docket No. 27). On November 25, 2014, Magistrate Judge Barbara Lynn 21 Major issued a thoughtful and thorough Report and Recommendation recommending 22 that the Petition be dismissed as untimely. (Docket No. 32). Objections to the Report 23 and Recommendation were initially due by December 24, 2014. (Id.) However, the 24 Court granted Petitioner’s request for an extension of time to file objections to January 25 24, 2015. (Docket No. 34). No objections have been filed. For the reasons that follow, 26 the Report and Recommendation is ADOPTED. 27 /// 28 /// -1- 12cv2882 1 A district judge “may accept, reject, or modify the recommended disposition” of 2 a magistrate judge on a dispositive matter. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. 3 § 636(b)(1). “[T]he district judge must determine de novo any part of the [report and 4 recommendation] that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). 5 However, “[t]he statute makes it clear that the district judge must review the magistrate 6 judge’s findings and recommendations de novo if objection is made, but not 7 otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 8 banc); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). “Neither 9 the Constitution nor the statute requires a district judge to review, de novo, findings 10 and recommendations that the parties themselves accept as correct.” Reyna-Tapia, 328 11 F.3d at 1121. 12 After a de novo review, and in the absence of any objections, the Court fully 13 ADOPTS Judge Major’s Report and Recommendation. The Petition is DISMISSED 14 as untimely. 15 The Court DENIES a certificate of appealability because the issues are not 16 debatable among jurists of reason and there are no questions adequate to deserve 17 encouragement. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The Clerk of 18 Court shall enter judgment DISMISSING the Petition. 19 20 IT IS SO ORDERED. 21 22 DATED: February 25, 2015 23 24 Hon. Roger T. Benitez United States District Judge 25 26 27 28 -2- 12cv2882

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