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Miller v. Sullivan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 24, 2010

ARTHUR LEE MILLER PETITIONER,
v.
J.W. SULLIVAN, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER: (1) DENYING PETITIONER'S MOTION FOR EXTENSION OF TIME; (2) ADOPTING MAGISTRATE JUDGE PORTER'S REPORT AND RECOMMENDATION; (3) DENYING PETITIONER'S WRIT OF HABEAS CORPUS; and (4) DISMISSING PETITION WITH PREJUDICE (Doc. Nos. 1, 18, 26)

Petitioner Arthur Lee Mill, a prisoner proceeding pro se, filed a petition for writ of habeas corpus on September 11, 2008. (Doc. No. 1.) Respondent filed an answer on April 22, 2009. (Doc. No. 15.) Petitioner filed a traverse on May 11, 2009. (Doc. No. 16.) Petitioner was convicted on November 18, 2005 for one count of second degree murder and one count of attempted voluntary manslaughter. (See Lodgment No. 3.) The jury also found that Petitioner used and discharged a handgun during the commission of the crimes. (Id.) The state trial court sentenced Petitioner to 55 years, 6 months to life in prison on May 8, 2006. (See Lodgment No. 2.) The conviction was affirmed on appeal, and Petitioner's state habeas petition was summarily denied. (See Lodgment No. 3 & No.4.)

On February 23, 2010, Magistrate Judge Adler issued a Report and Recommendation ("R&R") to this Court, recommending the Court deny Petitioner's petition and dismiss the Petition with prejudice. (See Doc. No. 18.) Any objections to the R&R were originally due on or before March 19, 2010. The Court thereafter granted two separate extensions of time for Petitioner to file objections, one until May 14, 2010 and the other until August 6, 2010 on the basis of Petitioner's allegations that he was not given access to the prison's law library. (Doc. Nos. 20, 21, 23, 24.) In its Order granting Defendants' second extension of time, the Court stated that no further extensions of time will be given to Petitioner. (Doc. No. 24.) Accordingly, the Court DENIES Petitioner's third motion for extension of time. (Doc. No. 26.)

Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth the duties of a district court in connection with a magistrate judge's report and recommendation. "The district court must 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." 28 U.S.C. 636(b)(1)(c); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980). However, in the absence of timely objection, the Court need "only satisfy itself that there is no clear error on the face of the record." Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

In this case, Plaintiff has failed to timely file objections to Magistrate Judge Adler's R&R despite two extensions of time which allowed Petitioner an extra five months. Having reviewed the R&Rs, the Court finds that it is thorough, well reasoned, and contains no clear error. Therefore, the Court adopts both R&Rs in full.

The Court hereby: (1) DENIES Petitioner's third motion for extension of time to file objections; (2) ADOPTS Magistrate Judge Adler's Report and Recommendation; (3) DENIES Petitioner's petition for writ of habeas corpus; and (4) DISMISSES Petitioner's petition with prejudice. The Clerk shall close the file.

IT IS SO ORDERED.

20100824

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