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Richard Peter Dearment v. Michael Martel

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 7, 2011

RICHARD PETER DEARMENT,
PETITIONER,
v.
MICHAEL MARTEL, WARDEN, RESPONDENT.

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

ORDER ADOPTING REPORT AND RECOMMENDATION

DeArment filed a habeas petition on August 13, 2010 challenging his conviction in San Diego County Superior Court of lewd and lascivious conduct upon children. The petition was referred to Magistrate Judge Bencivengo for a report and recommendation. Judge Bencivengo issued a thorough and well-reasoned R&R on October 24, 2011 recommending that DeArment's petition be denied in its entirety. This Order ADOPTS that recommendation.

This Court has jurisdiction to review the R&R pursuant to Rule 72 of the Federal Rules of Civil Procedure. "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). 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).

Because DeArment is a prisoner and is proceeding pro se, the Court construes his pleadings liberally and affords him the benefit of any doubt. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). That said, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). That includes opposing Judge Bencivengo's R&R, which DeArment failed to do by the date allowed (November 23, 2011) even though he was warned that "failure to file objections within the specified time may waive the right to raise those objections on appeal." (R&R at 37.)

DeArment's petition asserts five claims (R&R at 2), each of which Judge Bencivengo's R&R considers in substantial depth and finds inadequate. DeArment's failure to oppose the R&R lends gravity to Judge Bencivengo's conclusions, which the Court has carefully reviewed and here affirms.

III. Conclusion

The Court ADOPTS the R&R and DENIES DeArment's petition in its entirety. Because DeArment hasn't made a "substantial showing of the denial of a constitutional right," a certificate of appealability is DENIED. 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (articulating standard for issuance of a certificate of appealability).

IT IS SO ORDERED.

20111207

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