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Rodgers v. Kernan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 8, 2007

FLOYD ANTHONY RODGERS, PETITIONER,
v.
SCOTT KERNAN, RESPONDENT.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER ADOPTING REPORT AND RECOMMENDATION; GRANTING MOTION TO DISMISS THE HABEAS PETITION WITH PREJUDICE [doc. #10]; and DIRECTING ENTRY OF JUDGMENT

Petitioner Floyd Anthony Rodgers ("petitioner") filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. Respondent filed a motion to dismiss the petition based upon the running of the statute of limitations. Although petitioner requested and was granted additional time in which to file an objection to the motion to dismiss, petitioner did not file a responsive memorandum prior to the filing of the Report.

The Honorable Louisa S. Porter issued a Report and Recommendation ("Report") pursuant to 28 U.S.C. § 636(b)(1), recommending the Petition be denied as untimely. Petitioner did not file objections to the Magistrate Judge's Report. For the reasons which follow, the Report and Recommendation is ADOPTED and the Petition is DENIED with prejudice.

The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna- , 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 124 S.Ct. 238 (2003); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia's holding to a habeas corpus proceeding).

The Court has independently reviewed the Report and all relevant papers submitted by both parties and finds that the Report presents a well-reasoned analysis of the statute of limitations under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") of 1996 and statutory tolling. Accordingly, having carefully considered the record, applicable law, and good cause appearing, IT IS ORDERED adopting the Report and Recommendation filed January 30, 2007, in its entirety. IT IS FURTHER ORDERED granting defendant's motion to dismiss the petition with prejudice. IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment in accordance with this Order.

IT IS SO ORDERED.

20070308

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