Opinion
CASE NO. 12-CV-969BEN (PCL)
2013-09-16
EDUARDO DUARTE, Petitioner, v. TIMOTHY BUSBY, Warden, Respondent.
ORDER:
(1) ADOPTING REPORT &
RECOMMENDATION AND
DENYING PETITION
(2) DENYING CERTIFICATE OF
APPEALABILITY
[ECF No. 20]
I. The Petition
On April 18, 2012, Eduardo Duarte ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. On May 15, 2013, Magistrate Judge Peter C. Lewis submitted a thoughtful and thorough Report and Recommendation. Magistrate Judge Lewis recommended denial of the petition. He set a deadline of June 12, 2013 for Petitioner to file objections. That deadline lapsed.
On July 11, 2013, Petitioner requested additional time to file objections. This Court extended the deadline to August 26, 2013 but cautioned that it would be reluctant to grant additional extensions. Again the deadline lapsed. No objections have been filed.
The docket reflects that on August 22, 2013, the Court received a "Notice of Change of Address" from Petitioner, dated August 13, 2013. (ECF No. 25.) Accompanying this document was a "Proof of Service by Mail," in which Petitioner states that he "served" a document entitled "Objection to Magistrate Judge's Report and Recommendation" on the United States District Court for the Southern District of California on August 13, 2013 by placing it in the United States mail. No such document or any substantive objections have been received by the Court.
Federal Rule of Civil Procedure 72(b) "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). No objections having been filed, the Court ADOPTS the Report and Recommendation in full and DENIES the petition for writ of habeas corpus.
II. Certificate of Appealability
Under Federal Rule of Appellate Procedure 22(b), there is no appeal from the final order in a habeas proceeding unless a "circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)." A "certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When the district court has rejected a claim on the merits, a "petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner has failed to make the required showing. Accordingly, the Court DENIES Buchanan a certificate of appealability.
IT IS SO ORDERED.
_________________________
HON. ROGER T. BENITEZ
United States District Court Judge