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Harrison v. Tamken

United States District Court, Ninth Circuit

June 10, 2013

CORNELL HARRISON, Petitioner,
v.
C. TAMKEN, Warden, Respondent.

ORDER: (1) ADOPTING IN FULL REPORT AND RECOMMENDATION; [Doc. No. 8] (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND [Doc. No. 1] (3) DENYING CERTIFICATE OF APPEALABILITY

IRMA E. GONZALEZ, District Judge

Before the Court is Petitioner Cornell Harrison's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). [Doc. No. 1.] Petitioner pled guilty in San Diego County Superior Court to one count of corporal punishment to a spouse and was sentenced to nine years in state prison and $1, 800 in restitution. [ Id. at 1.] The Petition challenges the propriety of the ordered restitution. [ Id. at 8.] Respondent filed a motion to dismiss the Petition as barred by the statute of limitations applicable under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). [Doc. No. 6 at 3-5.]

The Court referred the matter to Magistrate Judge William V. Gallo, who issued a Report and Recommendation ("R & R") recommending that the Court grant Respondent's motion and dismiss the Petition as barred by the statute of limitations applicable under AEDPA. [ See id. at 12.] The time for filing objections to the R & R expired on April 14, 2013. [ See id. at 13.] Petitioner has not filed any objections.

DISCUSSION

The Court reviews de novo those portions of the R & R 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." Id. But "[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.

In this case, the deadline for objections passed over a month ago and no objections have been filed. Accordingly, the Court may adopt the R & R on that basis alone. See id. Having reviewed the Petition, Respondent's motion to dismiss, and the R & R, the Court hereby approves and ADOPTS IN FULL the R & R. See 28 U.S.C. § 636(b)(1).

CONCLUSION

Having reviewed the R & R and there being no objections, the Court ADOPTS IN FULL the R & R and DENIES the Petition. The Court also DENIES a certificate of appealability because Petitioner has not "made a substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.


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