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Figueroa v. Lea

United States District Court, S.D. California

February 25, 2015

JOSE FIGUEROA, Petitioner,
v.
MELISSA LEA, Warden, et al., Respondents.

ORDER: • ADOPTING REPORT AND RECOMMENDATION • DISMISSING PETITION • DENYING CERTIFICATE OF APPEALABILITY

ROGER T. BENITEZ, District Judge.

Petitioner Jose Figueroa, a state prisoner proceeding pro se, commenced this action with the filing of a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1). He subsequently filed a first amended petition ("the Petition"). (Docket No. 9). Respondents filed a motion to dismiss the Petition as untimely. (Docket No. 27). On November 25, 2014, Magistrate Judge Barbara Lynn Major issued a thoughtful and thorough Report and Recommendation recommending that the Petition be dismissed as untimely. (Docket No. 32). Objections to the Report and Recommendation were initially due by December 24, 2014. (Id. ) However, the Court granted Petitioner's request for an extension of time to file objections to January 24, 2015. (Docket No. 34). No objections have been filed. For the reasons that follow, the Report and Recommendation is ADOPTED.

A district judge "may accept, reject, or modify the recommended disposition" of a magistrate judge on a dispositive matter. Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). "[T]he district judge must determine de novo any part of the [report and recommendation] that has been properly objected to." Fed.R.Civ.P. 72(b)(3). 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); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Reyna-Tapia, 328 F.3d at 1121.

After a de novo review, and in the absence of any objections, the Court fully ADOPTS Judge Major's Report and Recommendation. The Petition is DISMISSED as untimely.

The Court DENIES a certificate of appealability because the issues are not debatable among jurists of reason and there are no questions adequate to deserve encouragement. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The Clerk of Court shall enter judgment DISMISSING the Petition.

IT IS SO ORDERED.


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