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Julie Lynn Spencer v. Mary Lattimore

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 19, 2011

JULIE LYNN SPENCER,
PETITIONER,
v.
MARY LATTIMORE, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

Petitioner Julie Lynn Spencer filed a Second Amended Petition for writ of habeas corpus under 28 U.S.C. § 2254. (Dkt. No. 7.) Respondents moved to dismiss the Petition as time-barred by the applicable statute of limitations. (Dkt. No. 13.)

Magistrate Judge Cathy Ann Bencivengo issued a thoughtful and thorough Report and Recommendation recommending Respondents' motion be denied and that Respondents be ordered to file an Answer to the Petition and lodge all documents relating to the case. (Dkt. No. 14.) Any objections to the Report and Recommendation were due September 12, 2011. (Id.) Respondents did not file any objections. Having reviewed the matter de novo and for the reasons that follow, the Report and Recommendation is ADOPTED.

A district judge "may accept, reject, or modify the recommended disposition" of a magistrate judge on a dispositive matter. FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. §636(b)(1). "[T]he district judge must determinede novo any part of the [report and recommendation] that has been properly objected to." FED. R. CIV. P. 72(b)(3). However, "[t]he 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 original), cert denied, 540 U.S. 900 (2003); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Reyna-Tapia, 328 F.3d at 1121.

In the absence of any objections, the Court fully ADOPTS Judge Bencivengo's Report and Recommendation. Respondents' Motion to Dismiss is DENIED. Respondents shall file an Answer to the Petition.

IT IS SO ORDERED.

20110919

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