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William Cecil Thornton v. Matthew Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 4, 2012

WILLIAM CECIL THORNTON,
PETITIONER,
v.
MATTHEW CATE, SECRETARY, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Cathy Ann Bencivengo United States District Judge

ORDER ADOPTING REPORT AND PETITION [Doc. No. 42] RECOMMENDATION [Doc. No. 75] AND DENYING SECOND AMENDED

On February 17, 2011, Petitioner William Cecil Thornton ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, [Doc. No. 1.] On September 29, 2011, Petitioner filed a Second Amended Petition. [Doc. No. 42.] On March 7, 2012, Magistrate Judge Louisa Porter issued a Report and Recommendation ("Report") recommending that the Petition be denied. [Doc. No. 75.] The Report also ordered that any objections were to be filed by April 6, 2012. [Report at 29.] On April 2, 2012, Petitioner filed a motion for an extension of time to file objections. [Doc. No. 78.] The motion was granted and Petitioner was given until May 6, 2012 to file an objection. [Doc. No. 80.]*fn1 On April 18, 2012, Petitioner filed a second motion for extension of time to file an objection. [Doc. No. 83.] That motion was also granted and Petitioner was given until June 5, 2012 to file an objection. To date, no objection has been filed, nor have there been any additional requests for an extension of time in which to file an objection.

A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. The Court reviews de novo those portions of the Report and Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."

. 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). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Id.

The Court, therefore, accepts Judge Porter's recommendation, and ADOPTS the Report [Doc. No. 75] in its entirety. For the reasons stated in the Report, which is incorporated herein by reference, the Court DISMISSES the Second Amended Petition [Doc. No. 42] WITH PREJUDICE.

Moreover, because the Court does not believe that reasonable jurists would find the Court's assessment of the constitutional claims debatable or wrong it DECLINES to issue a Certificate of Appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).


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