DeJarlais v. King et al

Filing 17

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION; (2) Denying Petition; (3) Denying Certificate of Appealability. Signed by Judge Roger T. Benitez on 12/3/2015.(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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STEVEN DANIEL DEJARLAIS,

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Petitioner,

Case No.: 15-cv-l005 BEN (MDD)
ORDER:

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(1) ADOPTING REPORT AND
RECOMMENDATION;

v.

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AUDREY KING, Warden, et ai.,

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Respondent.

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(2) DENYING PETITION;
(3) DENYING CERTIFICATE OF
APPEALABILITY

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On May 5, 2015, Petitioner Steven Daniel DeJarlais filed a Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1.) On July 27, 2015,

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Respondent filed an Answer. (Docket No.9.) On October 14, 2015, Magistrate Judge

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Dembin issued a thorough and thoughtful Report and Recommendation, recommending

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that the Petition be denied. (Docket No. 14.) Petitioner filed an untimely, general

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objection. (Docket No. 16.)

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I.

De Novo Review of Petition
A district judge "may accept, reject, or modify the recommended disposition" of a

magistrate judge on a dispositive matter. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §

15cvlO05

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636(b)(1). Where a proper objection to a report and recommendation has been filed, the

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district court reviews de novo those portions of the report or specific proposed findings or

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recommendations to which the petitioner objected. 28 U.S.C. § 636(b)(1) (emphasis

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added). A general objection is tantamount to no objection at all. See Alcantara v.

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McEwen, No. 12-cv-401-IEG, 2013 WL 4517861, at *1-2 (S.D. Cal. Aug. 15,2013)

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(citing Howard v. Sec'y a/Health & Human Servs., 932 F.2d 505,509 (6th Cir. 1991)

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("A general objection to the entirety of the magistrate's report has the same effects as

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would a failure to object."); Lockert v. Faulkner, 843 F.2d 1015,1019 (7th Cir. 1988)

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("[A]n objection stating only 'I object' preserves no issue for review."); and Goney v.

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Clark, 749 F.2d 5, 7 (3d Cir. 1984)); see also Martin v. Ryan, No. cv-13-381, 2014 WL

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5432133, at *2 (D. Ariz. Oct. 24, 2014) (citing United States v. One Parcel ofReal Prop.,

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73 F.3d 1057,1060 (10th Cir. 1996)).

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Petitioner filed a general Objection "alleg[ing] the Magistrate[ Judge's] findings of

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fact are unreasonable in light ofthe record, when taken as a whole." (Objection 1.)

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Petitioner also "incorporate[d] by reference those facts, claims, and arguments contained

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in the 'Petition'." (Objections 1.)
The Court finds Alcantara and the laws of the other circuit courts persuasive. It is

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apparent that Petitioner failed to make any specific objections to the Report. Thus, the

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Court need not conduct a de novo review. See Garcia v. Subia, No. 07cv1869, 2011 WL

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1119181, at *3, *5 (S.D. Cal. Mar. 28, 2011); Sullivan v. Schriro, No. 04-1517, 2006 WL

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1516005 (D. Ariz. May 30, 2006). Even still, the Court did perform a de novo review of

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the entire record in this matter and fully ADOPTS the Report and Recommendation.

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II.

Certificate of Appealability
"The district court must issue or deny a certificate of appealability when it enters a

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final order adverse to the applicant." Rule 11 foil. 28 U.S.C. § 2254. In this case, the

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Court finds that Petitioner did not make a substantial showing of the denial of a

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constitutional right, the issues are not debatable among jurists of reason, and a court

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could not resolve the issues in a different manner. See Miller-El v. Cockrell, 537 U.S.
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15cvlO05

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322, 327 (2003). The Court therefore DENIES a certificate of appealability.

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CONCLUSION
Accordingly, the Court ADOPTS in full the Report and Recommendation. The

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Petition is DENIED. The Court DENIES a certificate of appealability. The Clerk shall

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enter judgment denying the Petition.

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IT IS SO ORDERED.

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Dated: December

a,

2015

Hon. Roger T. Benitez
United states District Judge

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