The opinion of the court was delivered by: William McCURINE, Jr., United States Magistrate Judge.
The matter before the Court is the Report and Recommendation (Doc. 12) of Magistrate Judge William McCurine recommending that the Court deny the motion to dismiss the petition filed by Respondent.
On March 25, 2008, Petitioner Jose Ramirez-Salgado filed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) On April 3, 2008, the Court dismissed the Petition without prejudice and with leave to amend. (Doc. 2.) On May 2, 2008, Petitioner filed his first amended petition naming Larry E. Scribner as the respondent. (Doc. 4.) On August 29, 2008, Respondent filed a motion to dismiss (Doc. 8), asserting that the Petition is barred by the applicable one year statute of limitations set by 28 U.S.C. § 2244(d)(1). Petitioner filed a timely opposition to Respondent's motion to dismiss (Doc. 10), asserting that his petition is not time barred because he is entitled to statutory and equitable tolling of the one year statute of limitations. On December 5, 2008, Magistrate Judge William McCurine issued the Report and Recommendation. (Doc. 12.) Neither party filed an objection to the Report and Recommendation.
The duties of the district court in connection with a Magistrate Judge's Report and Recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). Where the parties object to a Report and Recommendation, "[a] judge of the [district] court shall make a de novo determination of those portions of the [Report and Recommendation] to which objection is made." 28 U.S.C.A. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). When no objections are filed, the district court need not review de novo the Report and Recommendation. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en banc). A district court may nevertheless, "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); Wilkins v. Ramirez, 455 F.Supp.2d 1080, 1088 (S.D.Cal.2006); Or. Natural Desert Ass'n v. Rasmussen, 451 F.Supp.2d. 1202, 1205 (D.Or.2006).
Neither party objected to the Magistrate Judge's Report and Recommendation in this case, and this Court has reviewed the Report and Recommendation in its entirety. The Court concludes that the Magistrate Judge correctly determined that "Petitioner has filed his petition in federal court three-hundred seven (307) days into the applicable one (1) year, threehundred sixty-five (365) days, statute of limitations." (Doc. 12 at 10.)
IT IS HEREBY ORDERED that (1) the Report and Recommendation (Doc. 12) is adopted in its entirety, and (2) the motion to dismiss the petition (Doc. 8) filed by Respondent Larry Scribner is DENIED. Respondents shall file an answer with the Court and serve a copy on all parties within 30 days of the date of this order. Petitioner shall file his traverse with the Court and serve a copy on all parties no later than 30 days after the filing of Respondent's answer.
REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTION TO DISMISS PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. 2254
Petitioner Jose Ramirez-Salgado, a state inmate proceeding pro se, challenges the California Board of Parole Hearings decision to deny Petitioner parole with a federal Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. Respondent has submitted a Motion to Dismiss the Petition ("Mot. to Dismiss"; Doc. No. 8) and moves this court to dismiss the petition as time barred under 28 U.S .C. § 2244(d)(1). Petitioner has submitted an Opposition to Respondent's Motion to Dismiss ("Opp. to Mot. to Dismiss"; Doc. 10).
This Report and Recommendation is submitted to United States District Judge William Q. Hayes, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.
Based upon the documents presently before the Court and for the reasons stated below, the Court RECOMMENDS that Respondent's Motion to Dismiss be DENIED.
Petitioner is in custody at the Calipatria State Prison serving a fifteen year to life sentence, resulting from a guilty plea, for second degree murder, plus a four year enhancement for the use of a firearm.
On November 1, 2005, the California Board of Parole issued their decision concluding Petitioner was ineligible for Parole. (Lodgment 1).
On February 5, 2006, Petitioner filed *fn1 a Petition for Writ of Habeas Corpus with the Superior Court of California for San Diego County. (Lodgment 2).
On March 1, 2006, the decision of the California Board of Parol denying Petitioner parole became effective under Cal. Pen.Code § 3041(b). (Lodgment 1 at 4).
On April 11, 2006, sixty-six (66) days after the date of filing, the Superior Court of California issued its decision denying Petitioner habeas relief. (Lodgment 3).
On June 15, 2006, sixty-four (64) days later,*fn2 Petitioner filed a Petition for Writ of Habeas Corpus with the California Court of ...