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Maria S. Alvarez v. D.K. Johnson

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 2, 2013

MARIA S. ALVAREZ,
PETITIONER,
v.
D.K. JOHNSON, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION; GRANTING ) RESPONDENT'S MOTION TO DISMISS; ) DENYING PETITION FOR HABEAS CORPUS

Pending before the Court is Respondent's Motion to Dismiss. (Doc. No. 13). Petitioner did not file an opposition to Respondent's Motion. The Court referred the matter to Magistrate Judge David H. Bartick, who issued a Report and Recommendation ("R&R") recommending the Court grant Respondent's Motion to Dismiss inasmuch as the Petition is statutorily barred by the expiration of the limitations period. (R&R, Doc. No. 19). Neither party filed an objection to the R&R.

Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district judge's duties in connection with a magistrate judge's report and recommendation. The district judge must "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 finding or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely objection(s), the Court "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72(b), Advisory Committee Notes (1983); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

Neither party has timely filed objections to Magistrate Judge Bartick's Report and Recommendation. Having reviewed the report and recommendation, the Court finds that Magistrate Judge Bartick's Report and Recommendation is thorough, well reasoned, and contains no clear error. Accordingly, the Court hereby: (1) ADOPTS Magistrate Judge Bartick's Report and Recommendation in its entirety; (2) GRANTS Respondent's Motion to Dismiss the Petition.Therefore, the Court directs that judgment be entered DENYING the Petition for Writ of Habeas Corpus.

When a district court enters a final order adverse to the applicant in a habeas proceeding, it must either issue or deny a certificate of appealability, which is required to appeal a final order in a habeas proceeding. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability is appropriate only where the petitioner makes "a substantial showing of the denial of a constitutional right." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Under this standard, the petitioner must demonstrate that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. 28 U.S.C. § 2253; Slack v. McDaniel, 529 U.S. 473, 474 (2000). Here, the Court finds that reasonable jurists could not debate whether Respondent's motion to dismiss should have been resolved differently and therefore DENIES the certificate of appealability.

IT IS SO ORDERED.

20130102

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