Domingo Pena v. Stu Sherman ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 WESTERN DIVISION 10 ________________________________ 11 ) DOMINGO PENA, ) No. LA CV 15-09216-VBF-SK 12 ) Plaintiff, ) ORDER 13 ) v. ) Adopting the R & R: 14 ) Denying the SAP (All Exhausted STU SHERMAN (Warden), ) Claims in the FAP) 15 ) Respondent. ) Directing Entry of Final Judgment; 16 ________________________________) Terminating the Case (JS-6) 17 The Honorable Steven Kim, United States Magistrate Judge, issued a Report 18 and Recommendation (“R&R”) on July 11, 2019 (CM/ECF Document (“Doc”) 51), 19 and the Notice of Filing advised the parties that they had to file any objections no 20 later than Thursday, August 1, 2019. Petitioner did not object within the time allotted 21 by the Notice of Filing the R&R and by Local Rule 72-3.4, nor has he sought an 22 extension of the objection deadline. 23 Fed. R. Civ. P. 72(b)(3) requires de novo review only of those parts of an R&R 24 to which a party has timely objected. See Khan v. Langford, 2018 WL 1271204, *1 25 (C.D. Cal. Mar. 8, 2018) (citing, inter alia, US v. Reyna-Tapia, 328 F.3d 1114, 1121 26 (9th Cir. 2003) (en banc)). 27 28 -1- 1 But the Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that 2 when no timely objection is filed, the Court should review the R&R “for clear error 3 on the face of the record.” Juarez, 2016 WL 2908238 at *2 (cite omitted); accord 4 Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1420 (5th Cir. 1996) (en banc); 5 Benitez v. Parmer, 654 F. App’x 502, 503 (2d Cir. 2016) (“Because Benitez thus 6 made only a general objection, the district court reviewed the 2013 R&R for clear 7 error.”) (citing, inter alia, Adv. Comm. Notes to 1983 Am. of Fed. R. Civ. P. 72(b)). 8 On de novo or clear-error review, the Court finds no defect of law, fact, or 9 logic in the R&R. Accordingly, the Court will accept the Magistrate Judge’s findings 10 and conclusions and implement her recommendations. 11 12 ORDER 13 The Report and Recommendation [Doc # 51] is ADOPTED. 14 The Second Amended Petition, consisting only of the exhausted claims in 15 the First Amended Petition [Doc # 10],1 is DENIED. 16 This action is DISMISSED with prejudice. 17 18 Judgment will be entered consistent with this Order and with the R&R. As 19 required by Fed. R. Civ. P. 58(a), judgment will be entered as a separate document. 20 The Court will rule on a certificate of appealability by separate order. 21 1 22 By Order issued on January 3, 2019, the Magistrate Judge ordered as follows: 23 [T]he FAP [First Amended Petition] (ECF 10) is ordered amended with the 24 unexhausted claims stricken; Respondent’s Motion to Dismiss the FAP (ECF 16) is denied as moot; the amended petition without the unexhausted claims is deemed the 25 Second Amended Petition (SAP) without need for any additional filing; and the SAP is ordered filed as of today’s date. 26 27 Doc 35 at 2. 28 -2- 1 The case SHALL BE TERMINATED and closed (JS-6). 2 IT IS SO ORDERED. Dated: August 27, 2019 bles becker (lurboeahe Honorable Valerie Baker Fairbank > Senior United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-