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Jesus Pereda Ramos v. J. Tim Ochoa

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 18, 2011

JESUS PEREDA RAMOS,
PETITIONER,
v.
J. TIM OCHOA, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

AND RECORDER ADOPTING REPORT OMMENDATION OF MAGISTRATE JUDGE, DENYING PETITION, AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Jesus Pereda Ramos, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254 ("Petition"). Petitioner was arrested in 1985 for child molestation. Shortly thereafter Petitioner was released on his own recognizance on the condition he would not leave the state and would appear in court on November 27 and December 6, 1985 for his felony disposition conference and preliminary hearing, respectively. Petitioner did not appear but moved to Mexico. A bench warrant for his arrest was issued when he failed to appear at the November 27, 1985 hearing. He was arrested in March 2006 when he attempted to cross the border from Mexico into the United States. Following a jury trial which commenced on June 11, 2007, Petitioner was convicted of several counts of child molestation and sentenced to twelve years and eight months in state prison. He claims his federal constitutional rights were violated because more than twenty years had elapsed before he was brought to trial, and because he was sentenced to the upper term on several counts without a jury finding of aggravated circumstances.

The Petition was referred to United States Magistrate Judge Jan M. Adler for a report and recommendation pursuant to 28 U.S.C. Section 636(b)(1)(B) and Civil Local Rule 72.1(d). The Magistrate Judge issued a Report and Recommendation ("R&R"), recommending the Petition be denied. On the first claim he found that the state court's finding that Petitioner could not assert a speedy trial claim due to his own active evasion was not "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); see R&R at 9-18. With respect to the second claim, the Magistrate Judge found it was unexhausted, thus subjecting the entire Petition to dismissal.*fn1 (R&R at 18-19, citing Rose v. Lundy, 455 U.S. 509, 522 (1982).) In the alternative, he recommended denying the second claim on the merits. (R&R at 20-22.)

Petitioner timely objected to the Report and Recommendation. Respondent did not file a response. In reviewing a magistrate judge's report and recommendation, 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." 28 U.S.C. § 636(b)(1). 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-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc) (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review).

Upon de novo review of the Report and Recommendation and Petitioner's objections, Petitioner's objections are overruled and the Report and Recommendation is adopted in full.

Accordingly, the Petition is DENIED, and the Clerk shall enter judgment accordingly. Certificate of appealability is DENIED.

IT IS SO ORDERED.


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