Opinion
NO. EDCV 13-00019-MWF (MAN)
04-29-2014
MARIO MARQUEZ, Petitioner, v. M.D. BITER, WARDEN, Respondent.
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED STATES
MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus ("Petition"), all of the records herein, the Report and Recommendation of United States Magistrate Judge ("Report"), and Petitioner's Objections to the Report. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has conducted a de novo review of those portions of the Report to which objections have been stated.
Petitioner has appended to his Objections several documents that were not presented to the Magistrate Judge. A district court has discretion, but is not required, to consider evidence or arguments presented for the first time in objections to a report and recommendation. See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000). The Court has exercised its discretion to consider these new documents, but concludes that they do not affect or alter the analysis and conclusions set forth in the Report.
Having completed its review, the Court concludes that the Petition is untimely. The Court accepts and adopts the Report and the findings of fact, conclusions of law, and recommendations therein. Accordingly, IT IS ORDERED that: (1) Respondent's motion to dismiss is GRANTED; and (2) Judgment shall be entered dismissing this action with prejudice.
The Court notes that the date of February 24, 2011, likely should be July 24, 2011. (R&R at 4, 12). Similarly, there appears to be a minor inconsistency between May 7, 2012 (R&R at 13) and May 9, 2012 (R&R at 6). Theses dates do not affect the thorough reasoning of the Report and Recommendation as to timeliness.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on the parties.
LET JUDGMENT BE ENTERED ACCORDINGLY.
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MICHAEL W. FITZGERALD
UNITED STATES DISTRICT JUDGE