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Marilyn Kaye Freeman v. Matthew Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 11, 2012

MARILYN KAYE FREEMAN,
PETITIONER,
v.
MATTHEW CATE, RESPONDENT.

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

ORDER DENYING SIXTH REQUEST FOR EXTENSION OF TIME, ADOPTING REPORT AND DENYING PETITION RECOMMENDATION, AND

Petitioner Marilyn Kaye Freeman, proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. The case was referred to United States Magistrate Judge Mitchell D. Dembin for a report and recommendation pursuant to 28 U.S.C. Section 636(b)(1)(B) and Civil Local Rule 72.1(d). July 31, 2012, the Magistrate Judge issued a Report and Recommendation recommending to deny the Petition.

Petitioner's objections to the Report and Recommendation were due on August 22, 2012. The due date has been extended five times to accommodate Petitioner's requests. Most recently, on November 26, 2012, in granting Petitioner's fifth request for extension of time, the due date was extended to December 7, 2012. Petitioner was warned no further extensions would be granted. On December 7, 2012, Petitioner did not file objections to the Report and Recommendation, but requested another extension of time. Petitioner's sixth request is denied.

A district judge "may accept, reject, or modify the recommended disposition" 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). When no objections are filed, the de novo review is waived. Section 636(b)(1) does not require review by the district court under a lesser standard. 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 original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review).

In the absence of objections, the court ADOPTS the Report and Recommendation. The petition is DENIED for the reasons stated in the Report and Recommendation. For the same reasons, certificate of appealability is also DENIED.

IT IS SO ORDERED.

20121211

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