Blackgold v. Madden ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SUTEN BLACKGOLD, Case No.: 23cv13-CAB-BGS 12 Petitioner, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION [Doc. No. 13] AND GRANTING MOTION TO 14 RAYMOND MADDEN, DISMISS [Doc. No. 10] 15 Respondent. 16 17 On January 3, 2023, Petitioner Suten Blackgold (“Petitioner”), a state prisoner 18 proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus 19 pursuant to 28 U.S.C. § 2254, challenging the January 21, 2021, Level Three Decision of 20 the California Department of Corrections and Rehabilitation (“CDCR”) Office of 21 Appeals that resulted in the forfeiture of 150 days of Petitioner’s good time credit. [Doc. 22 No. 1.] On July 17, 2023, Respondent filed a motion to dismiss the Petition. [Doc. No. 23 10.] Petitioner did not file an opposition. 24 On November 24, 2023, Magistrate Judge Bernard G. Skomal issued a Report and 25 Recommendation (“Report”), recommending that the Court grant the motion to dismiss. 26 [Doc. No. 13.] The Report also ordered that any objections were to be filed by December 27 13, 2023. [Report at 22.] To date, no objection has been filed, nor has there been a 28 request for additional time in which to file an objection. 1 A district court’s duties concerning a magistrate judge’s report and 2 recommendation and a respondent’s objections thereto are set forth in Rule 72(b) of the 3 Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are 4 filed, the district court is not required to review the magistrate judge’s report and 5 recommendation. The Court reviews de novo those portions of the Report and 6 Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may 7 “accept, reject, or modify, in whole or in part, the findings or recommendations made by 8 the magistrate judge.” Id. However, “[t]he statute makes it clear that the district judge 9 must review the magistrate judge's findings and recommendations de novo if objection is 10 made, but not otherwise.” United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th 11 Cir.2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute 12 requires a district judge to review, de novo, findings and recommendations that the 13 parties themselves accept as correct.” Id. 14 Here, neither party has timely filed objections to the Report. Having reviewed it, 15 the Court finds that it is thorough, well-reasoned, and contains no clear error. 16 Accordingly, the Court HEREBY ADOPTS Magistrate Judge Skomal’s Report and 17 Recommendation [Doc. No. 13] in its entirety. For the reasons stated in the Report, 18 which is incorporated herein by reference, the Court GRANTS the motion to dismiss 19 [Doc. No. 10.] on the following grounds: 20 (1) the Petition is untimely under 28 U.S.C. §2244(d)(1) and equitable tolling does 21 not apply; 22 (2) the Petition is procedurally defaulted, Petitioner has not shown actual harm 23 resulting from the alleged error sufficient to excuse the default, and neither exception that 24 would excuse a procedural default and allow a federal court to consider the merits of a 25 claim applies here; and 26 27 28 1 (3) Petitioner failed to exhaust state court remedies. ! 2 Moreover, because the Court does not believe that reasonable jurists would find the 3 || Court’s assessment of the constitutional claims debatable or wrong it DECLINES to 4 ||issue a Certificate of Appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 5 The Clerk of Court shall CLOSE the case. 6 IT IS SO ORDERED. 7 ||Dated: January 22, 2024 € Z 8 Hon. Cathy Ann Bencivengo ? United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 || ———___—_—_—- 28 The motion to dismiss on all other grounds is DENIED.