Domenico G Diaz v. Dean Borders
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
The court reviewed a Report and Recommendation (R&R) recommending the dismissal of a state prisoner's habeas petition as untimely, noting that no objections were filed by the parties. The court adopted the R&R in its entirety, granted the respondent's motion to dismiss, denied the habeas petition, and declined to issue a certificate of appealability.
| What the court decided | Standard it applied | The model |
|---|---|---|
Adopted the Report and Recommendation (ECF No. 18) in its entirety.“Hence, the Court hereby approves and ADOPTS the R&R in its entirety (ECF No. 18)” | de novo | agree with court The court correctly applied the standard for reviewing a magistrate judge's R&R. Under 28 U.S.C. § 636(b)(1) and Ninth Circuit precedent (United States v. Reyna-Tapia), a district judge must conduct a de novo review of an R&R only if objections are filed. Since no objections were filed by either party, the court was not required to conduct a de novo review, though it stated it did so anyway. The adoption of the R&R is procedurally sound. |
Granted Respondent's Motion to Dismiss (ECF No. 16).“GRANTS Respondent’s motion to dismiss (ECF No. 16)” | de novo | agree with court The order states that the respondent moved to dismiss the petition as untimely. The court adopted the R&R, which presumably contained the analysis supporting the dismissal. While the order does not explicitly restate the timeliness analysis, it confirms the de novo review of the motion and the R&R, concluding the reasoning was sound. The grant of the motion follows from the adoption of the R&R. |
Denied Petitioner's Petition for Writ of Habeas Corpus (ECF No. 1).“DENIES Petitioner’s petition for writ of habeas corpus (ECF No. 1)” | de novo | agree with court The denial of the habeas petition is the direct consequence of granting the motion to dismiss. The court found the R&R's reasoning sound after de novo review. The decision is consistent with the procedural posture and the cited authorities regarding the review of magistrate recommendations. |
Declined to issue a Certificate of Appealability (COA).“the Court DECLINES to issue a certificate of appealability.” | substantial evidence | agree with court The court applied the standard from 28 U.S.C. § 2253(c)(2) and Slack v. McDaniel, requiring a substantial showing of the denial of a constitutional right. The court determined that reasonable jurists would not find the assessment debatable or wrong. This is the correct legal standard for denying a COA in a habeas case. |
The order itself: sound — The order is procedurally sound. It correctly identifies the standard for reviewing a magistrate's R&R (de novo only upon objection) and applies it to the facts (no objections filed). It correctly cites binding Ninth Circuit authority (Reyna-Tapia) and Supreme Court authority (Slack) for the COA denial. The court notes it conducted a de novo review anyway, which is permissible. The reasoning is concise but legally accurate for a procedural adoption order.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DOMENICO G. DIAZ, Case No. 20-cv-00825-BAS-LL 12 Petitioner, ORDER: 13 v. (1) APPROVING AND 14 DEAN BORDERS, ADOPTING REPORT AND 15 Respondent. RECOMMENDATION IN ITS ENTIRETY (ECF No. 18); 16 17 (2) GRANTING RESPONDENT’S 18 MOTION TO DISMISS (ECF No. 16); AND 19 20 (3) DIRECTING JUDGMENT BE ENTERED DENYING 21 PETITIONER’S HABEAS 22 PETITION.
24 Petitioner Domenico G. Diaz, a state prisoner proceeding pro se and in forma 25 pauperis, filed this petition for writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 1.) 26 Petitioner was convicted in 2004 for forcible lewd conduct with a child under the age of 27 fourteen, kidnapping, making a criminal threat, kidnapping for rape, and assault with the 28 intent to commit rape, for which he was sentenced to two consecutive life sentences with 1 a minimum term of fifty-one years to life followed by a third consecutive life term with the 2 possibility of parole. (ECF No. 17-1 at 1–2; ECF No. 17-11 at 1.) Petitioner challenges 3 his conviction on the grounds of ineffective assistance of counsel, admission of false 4 testimony at trial, and numerous other alleged constitutional violations. (ECF No. 1.) 5 Respondent moves to dismiss the Petition as untimely. (ECF No. 16.) 6 The Court reviews de novo those portions of the R&R to which objections are made. 7 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part, the 8 findings or recommendations made by the magistrate judge.” Id. But “[t]he statute makes 9 it clear that the district judge must review the magistrate judge’s findings and 10 recommendations de novo if objection is made, but not otherwise.” United States v. Reyna- 11 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also Rogers v. Giurbino, 288 12 F.R.D. 469, 475 (S.D. Cal. 2012) (concluding that where no objections were filed, the 13 district court had no obligation to review the magistrate judge’s report). “Neither the 14 Constitution nor the statute requires a district judge to review, de novo, findings and 15 recommendations that the parties themselves accept as correct.” Reyna-Tapia, 328 F.3d at 16 1121. “When no objections are filed, the de novo review is waived.” Marshall v. Astrue, 17 No. 08-cv-1735, 2010 WL 841252, at *1 (S.D. Cal. Mar. 10, 2010) (Lorenz, J.) (adopting 18 report in its entirety without review because neither party filed objections to the report 19 despite the opportunity to do so). 20 In this case, the deadline for filing objections was February 4, 2021. No objections 21 have been filed, and neither party has requested additional time to do so. Consequently, 22 the Court may adopt the R&R on that basis alone. See Reyna-Tapia, 328 F.3d at 1121. 23 Having nonetheless conducted a de novo review of the habeas petition, Respondent’s 24 motion to dismiss, the lodgement, and the R&R, the Court concludes that Judge Lopez’s 25 reasoning is sound. 26 Hence, the Court hereby approves and ADOPTS the R&R in its entirety (ECF No. 27 18), GRANTS Respondent’s motion to dismiss (ECF No. 16), DENIES Petitioner’s 28 1 || petition for writ of habeas corpus (ECF No. 1), and ORDERS the Clerk of the Court to 2 || enter judgment accordingly. See 28 U.S.C. § 636(b)(1). 3 In addition, a certificate of appealability may issue only if the applicant makes a 4 ||substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). 5 ||Petitioner has made no such showing. Because reasonable jurists would not find the 6 ||Court’s assessment of the claims debatable or wrong, the Court DECLINES to issue a 7 || certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 8 IT IS SO ORDERED. 9 A. 10 || DATED: February 11, 2021 sii 4 5 Hipha. 6 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28