Opinion
CASE NO. LA CV 15-01794 VBF (RAO)
05-26-2016
JUAN PABLO ZAMBRANO, Petitioner, v. CONNIE GIPSON, Respondent.
ORDER
Adopting Report and Recommendation; Denying the Habeas Corpus Petition; Directing Entry of Separate Judgment; Dismissing the Action with Prejudice; Terminating the Case (JS-6)
Pursuant to 28 U.S.C. § 636(b)(1), the Court has reviewed the Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. section 2254 ("petition") (CM/ECF Document ("Doc") 1), the respondent warden's answer and accompanying memorandum (Docs 8-9), the relevant decision(s) of the California state courts, the state-court "lodged documents" submitted by the respondent in paper form (listed in the index at Doc 10), petitioner's traverse (Doc 16), the Report and Recommendation ("R&R") issued by the United States Magistrate Judge pursuant to Fed. R. Civ. P. 72(b)(1) and 28 U.S.C. § 636(b)(1)(B) on April 19, 2016 (Doc 19), petitioner's timely objections to the R&R (Doc 20), and the applicable law. By Notice filed this Monday, May 23, 2016, the respondent government stated it did not intend to file any response to petitioner's objections, so briefing is complete and there is no need to wait further before ruling. Cf. Ruelas v. Muniz, No. SA CV 14-01761, 2016 WL 540769, *1 (C.D. Cal. Feb. 9, 2016).
Both Fed. R. Civ. P. 72(b)(2) and 28 U.S.C. section 636(b)(1) provide that a party may file written objections to an R&R within fourteen days after being served with the R&R. Our Local Civil Rule 72-3.3, however, provides that "[i]f a party is in custody at the time of the filing of the Magistrate Judge's Report, the time for filing objections under F.R. Civ. P. 72(b) shall be shall be twenty (20) days or such further time as the Magistrate Judge may order."
"Consistent with the Federal Rule governing Magistrate Judges and the Federal Magistrates Act, the Court construes that to mean twenty calendar days after the incarcerated party is served with the R&R, not merely twenty days after the R&R is filed on the docket." Crump v. CSPLos Angeles County's MaintenancePlant Operations Dep't, No. LA CV 1507845 Doc. 37 at 2 n.1 (C.D. Cal. Apr. 21, 2016) (Fairbank, J.) (not yet on WL or Lexis).
"As required by Fed. R. Civ. P. 72(b)(3), the Court has engaged in de novo review of the portions of the R&R to which petitioner has specifically objected and finds no defect of law, fact, or logic in the . . . R&R." Rael v. Foulk, No. LA CV 14-02987, 2015 WL 4111295, *1 (C.D. Cal. July 7, 2015) (Fairbank, J.), appeal filed, No. 15-56205 (9th Cir. Aug. 6, 2015). Accordingly, the Court will accept and implement the Magistrate Judge's findings and recommendations.
ORDER
Petitioner's objections are OVERRULED.
The April 19, 2016 Report and Recommendation is ADOPTED.
The petition for a writ of habeas corpus is DENIED.
The Court will rule on a certificate of appealability by separate order.
Final judgment will be entered in favor of respondent consistent with this order.
"As required by Fed. R. Civ. P. 58(a), the Court will enter judgment by separate document." Toy v. Soto, 2015 WL 2168744, *1 (C.D. Cal. May 5, 2015) (citing Jayne v. Sherman, 706 F.3d 994, 1009 (9th Cir. 2013)) (footnote 1 omitted), appeal filed, No. 15-55866 (9th Cir. June 5, 2015). Dated: Thursday, May 26, 2016
Accord Buck v. American Quarter Horse Ass'n, 602 F. App'x 709, 710 n.1 (10th Cir. 2015) ("[W]e note that the district court did not prepare a separate document entering judgment in accordance with Fed. R. Civ. P. 58(a).").
"'To comply with Rule 58, an order must (1) be selfcontained and separate from the opinion; (2) note the relief granted; and (3) omit or substantially omit the district court's reasons for disposing of the claims.'" Elkins v. Foulkes, 2014 WL 2615732, *14 n.4 (C.D. Cal. June 12, 2014) (quoting Daley v. USAO, 538 F. App'x 142, 143 (3d Cir. 2013) (per curiam) (citation omitted)).
"'A combined document denominated an Order and Judgment, containing factual background, legal reasoning, as well as a judgment, generally will not satisfy the rule's prescription.'" Fisher v. Ventura Cty. Sheriffs Narcotics Agency, 2014 WL 2772705, *7 n.9 (C.D. Cal. June 18, 2014) (quoting In re Taumoepeau, 523 F.3d 1213, 1217 (10th Cir. 2008)) (internal quote marks omitted).
/s/_________
VALERIE BAKER FAIRBANK
UNITED STATES DISTRICT JUDGE