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Silva v. Cate

United States District Court, Ninth Circuit

July 3, 2013

JOHN MANUEL SILVA, Petitioner,
v.
MATTHEW CATE, and KAMALA D. HARRIS, Respondents.

ORDER ADOPTING REPORT AND RECOMMENDATION

LARRY ALAN BURNS, District Judge.

Silva filed his habeas petition on May 22, 2012, and pursuant to 28 U.S.C. ยง 636(b) and Civil Local Rules 72.1(c) and (d) it was referred to Magistrate Judge Nita Stormes for a Report and Recommendation ("R&R"). Now before the Court is the Respondents' motion to dismiss. They argue that Silva's petition is untimely under AEDPA because it wasn't filed within the one-year statute of limitations period.

Judge Stormes issued her R&R on the motion on March 28, 2013, finding that Silva's petition was timely, taking statutory and equitable tolling into account. Objections were due on April 17, 2013, but none was filed. The Court therefore ADOPTS the R&R in its entirety. See Fed.R.Civ.P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been property objected to."); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (district judge "must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise").

The Respondents' motion to dismiss is DENIED. They must answer Silva's habeas petition so that the Court may adjudicate it on the merits.

IT IS SO ORDERED.


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