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Ronald Reed Dumas v. Matthew Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 25, 2011

RONALD REED DUMAS,
PLAINTIFF,
v.
MATTHEW CATE,
DEFENDANT.

The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS

Ronald Dumas filed his petition for writ of habeas corpus in this Court on March 25, 2010. Pursuant to Fed. R. Civ. P. 72 and 28 U.S.C. § 636, this matter was referred to Magistrate Judge William Gallo for report and recommendation. On December 14, Judge Gallo issued his report and recommendation (the "R&R"), finding it was time-barred. The R&R ordered that any objections be filed no later than January 14, 2011. Dumas has neither filed any objections nor sought any additional time in which to do so.

A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. §636(b)(1). "The court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. §636(b)(1). Section 636(b)(1) does not require some lesser review by the district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149--50 (1985). The "statute makes it clear that 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-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in the original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225--26 & n.5(D. Ariz. 2003) (applying Reyna-Tapia to habeas review). See also Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) ("If neither party contests the magistrate's proposed findings of fact, the court may assume their correctness and decide the motion on the applicable law.").

Respondent filed a motion to dismiss, which Dumas never opposed. Dumas remained in contact with the Court, however, and filed a notice of change of address on October 12.

The Court has reviewed the R&R and finds its reasoning sound. The R&R found Dumas' conviction became final on July 14, 2003, and he first sought habeas relief in state court on December 23, 2008, nearly four and a half years after AEDPA's one-year limitations period had expired. Dumas conceded his petition was late, but argued in his petition that he is entitled to tolling because his mother asked an attorney on July 22, 2005 to represent him,*fn1 because California's habeas procedures made his petition untimely, and because he is ignorant of the law. The R&R found Dumas was not entitled to tolling, and the Court agrees. The Court accepts these unobjected-to findings, and agrees with the R&R that Dumas' petition is time-barred.

The Court therefore ADOPTS the R&R. The Petition is DENIED. IT IS SO ORDERED.


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