(HC) Machuca v. Spearman ( 2020 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 ALEJANDRO MACHUCA, No. 2:19-cv-1257 KJM AC P 13 Petitioner, 14 v. ORDER 15 M. ELIOT SPEARMAN, Warden, 16 Respondent. 17 18 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 20 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On August 12, 2020, the magistrate judge filed findings and recommendations herein 22 which were served on all parties and which contained notice to all parties that any objections to 23 the findings and recommendations were to be filed within twenty-one days. ECF No. 21. Neither 24 party has filed objections to the findings and recommendations. 25 The court presumes that any findings of fact are correct. See Orand v. United States, 602 26 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 27 See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the 28 magistrate judge are reviewed de novo by both the district court and [the appellate] court . . . .”). 1 Having reviewed the file, the court finds the findings and recommendations to be supported by 2 the record and by the proper analysis. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The findings and recommendations filed August 12, 2020, are adopted in full; 5 2. Respondent’s motion to dismiss, ECF No. 11, is GRANTED; 6 3. This habeas corpus action, filed pursuant to 28 U.S.C. § 2254, is dismissed as 7 untimely; and 8 4. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 9 2253. 10 DATED: October 16, 2020. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28