Opinion
Case No. 14-cv-2378-BAS(PCL)
09-22-2015
ESTEBAN SANDOVAL, Petitioner, v. WARREN L. MONTGOMERY, Respondent.
ORDER:
(1) ADOPTING REPORT AND RECOMMENDATION IN ITS ENTIRETY; AND
(2) GRANTING RESPONDENT'S MOTION TO DISMISS
[ECF Nos. 13, 23]
On October 2, 2014, Petitioner Esteban Sandoval, a state prisoner proceeding pro se and in forma pauperis, filed this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging a prison disciplinary proceeding that found him guilty of constructive possession of a deadly weapon, which resulted in the loss of 360 days of earned custody credits. On February 10, 2015, Respondent Warren L. Montgomery filed a motion to dismiss the petition. Petitioner opposed the motion.
On July 29, 2015, United States Magistrate Judge Peter C. Lewis issued a Report and Recommendation ("report") recommending that this Court grant Respondent's motion to dismiss and enter judgment dismissing the petition with prejudice for failure to file within the applicable statute of limitations. Judge Lewis ordered any objections to be filed no later than August 21, 2015, and any replies be filed no later than September 18, 2015. To date, no objections have been filed, and neither party has requested additional time to do so.
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); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district court had no obligation to review the magistrate judge's report). "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. "When no objections are filed, the de novo review is waived." Marshall v. Astrue, No. 08cv1735, 2010 WL 841252, at *1 (S.D. Cal. Mar. 10, 2010) (Lorenz, J.) (adopting report in its entirety without review because neither party filed objections to the report despite the opportunity to do so).
In this case, the deadline for filing objections was on August 21, 2015. However, no objections have been filed, and neither party has requested additional time to do so. Consequently, the Court may adopt the R&R on that basis alone. See Reyna-Tapia, 328 F.3d at 1121. Having nonetheless conducted a de novo review of the habeas petition, Respondent's motion to dismiss, Petitioner's opposition, and the report, the Court hereby approves and ADOPTS the report in its entirety (ECF No. 23), and GRANTS Respondent's motion to dismiss (ECF No. 13). See 28 U.S.C. § 636(b)(1). The Court further ORDERS the Clerk of the Court to enter judgment dismissing the petition with prejudice for failure to file within the applicable statute of limitation in accordance with Judge Lewis' recommendation.
Moreover, a certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Petitioner has not made this showing. Because reasonable jurists would not find the Court's assessment of the claims debatable or wrong, the Court DECLINES to issue a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS SO ORDERED. DATED: September 22, 2015
/s/ _________
Hon. Cynthia Bashant
United States District Judge