Sanchez v. Pfeiffer

Filing 28

ORDER adopting re 27 Report and Recommendation; granting 8 Motion to Dismiss Petition for Writ of Habeas Corpus with Prejudice. The Clerk of Court is directed to CLOSE this case. Signed by Judge Anthony J. Battaglia on 9/28/2017. (All non-registered users served via U.S. Mail Service)(acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSEPH EUGENE SANCHEZ,

Case No.: 16-cv-2975-AJB (BLM)
Petitioner,

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ORDER:

v.
CHRISTIAN PFEIFFER,

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(1) ADOPTING THE REPORT AND
RECOMMENDATION; AND

Respondent.

(2) GRANTING RESPONDENT’S
MOTION TO DISMISS PETITION
FOR WRIT OF HABEAS CORPUS
WITH PREJUDICE

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(Doc. Nos. 8, 27)

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Presently before the Court is Respondent Christian Pfeiffer’s motion to dismiss the

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petition for writ of habeas corpus. (Doc. No. 8.) The Court referred the matter to Magistrate

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Judge Barbara L. Major for a Report and Recommendation (“R&R”), which was issued on

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August 28, 2017. (Doc. No. 27.) The R&R recommends that the district judge issue an

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order (1) approving and adopting the R&R; (2) finding that the Petition is not timely; and

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(3) directing that Judgment be entered granting Respondent’s motion to dismiss with

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prejudice. (Id. at 11.) The parties were instructed to file written objections to the R&R by

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16-cv-2975-AJB (BLM)

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September 27, 2017, and a reply to the objections no later than October 18, 2017. (Id. at

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11–12.)

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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judge’s duties in connection with a magistrate judge’s R&R. The district judge must “make

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a de novo determination of those portions of the report . . . to which objection is made[,]”

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and “may accept, reject, or modify, in whole or in part, the findings or recommendations

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made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Remsing,

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874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of objection(s), the Court “need

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only satisfy itself that there is no clear error on the face of the record in order to accept the

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recommendation.” Fed. R. Civ. P. 72(b) advisory committee note to the 1983 amendment;

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

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Neither party has filed objections to Magistrate Judge Major’s R&R. Having

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reviewed the R&R, the Court finds it thorough, well-reasoned, and contains no clear error.

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Accordingly, the Court hereby: (1) ADOPTS Magistrate Judge Major’s R&R; (2) finds

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the Petition untimely; and (3) GRANTS Respondent’s motion to dismiss WITH

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PREJUDICE.

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When a district court enters a final order adverse to the applicant in a habeas corpus

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proceeding, it must either issue or deny a certificate of appealability, which is required to

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appeal a final order in a habeas corpus proceeding. 28 U.S.C. § 2253(c)(1)(A). A certificate

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of appealability is appropriate only where the petitioner makes “a substantial showing of

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the denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 330 (2003)

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(quoting 28 U.S.C. § 2253(c)(2)). Under this standard, the petitioner must demonstrate that

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“reasonable jurists could debate whether [] the petition should have been resolved in a

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different manner or that the issues presented were adequate to deserve encouragement to

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proceed further.” Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (citation and internal

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quotation marks omitted).

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16-cv-2975-AJB (BLM)

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Here, the Court finds that reasonable jurists could not debate the Court’s conclusion

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to dismiss with prejudice Petitioner’s claims and therefore DECLINES to issue a

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certificate of appealability. The Clerk of Court is directed to CLOSE this case.

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IT IS SO ORDERED.

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Dated: September 28, 2017

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