Henderson v. Pollard

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THOMAS ALLEN HENDERSON, Case No.: 20-cv-00169-AJB-DEB 12 Petitioner, ORDER: 13 v. (1) ADOPTING THE REPORT AND 14 M. POLLARD, Warden, RECOMMENDATION and 15 Respondent. (2) DENYING PETITIONER’S 16 PETITION AS UNTIMELY AND 17 PROCEDURALLY DEFAULTED 18 (Doc. Nos. 13, 25) 19 20 21 22 I. BACKGROUND 23 Before the Court is Thomas Allen Henderson’s (“Petitioner”) Petition for Writ of 24 Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Warden M. Pollard 25 (“Respondent”) filed a Motion to Dismiss the Petition and lodged the state court. (Doc. No. 26 13.) The Court referred the matter to Magistrate Judge Daniel E. Butcher for a Report and 27 Recommendation (“R&R”), which he issued on March 1, 2022. (Doc. No. 25.) The R&R 28 recommends the Court construe Respondent’s motion to dismiss as an Answer to the 1 Petition and deny the Petition. (Id. at 2.) The parties were instructed to file written 2 objections to the R&R with the Court no later than March 17, 2022. (Id. at 10.) 3 II. DISCUSSION 4 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 5 judge’s duties in connection with a magistrate judge’s R&R. The district judge must “make 6 a de novo determination of those portions of the report . . . to which objection is made[,]” 7 and “may accept, reject, or modify, in whole or in part, the findings or recommendations 8 made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also United States v. 9 Remsing, 874 F.2d 614, 617 (9th Cir. 1989). “The statute [§ 636(b)(1)(C)] makes it clear 10 that the district judge must review the magistrate judge’s findings and recommendations 11 de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 12 1114, 1121 (9th Cir. 2003) (emphasis in original). Thus, in the absence of timely 13 objection(s), the court “need only satisfy itself that there is no clear error on the face of the 14 record in order to accept the recommendation.” Fed. R. Civ. P. 72(b) advisory committee’s 15 note to 1983 amendment; Reyna-Tapia, 328 F.3d at 1123. 16 Neither party has filed an objection to the Magistrate Judge’s R&R, and the time to 17 do so has passed. Having reviewed the R&R, the Court finds it thorough, well-reasoned, 18 and contains no clear error. Accordingly, the Court ADOPTS the Magistrate Judge’s R&R 19 in its entirety. (Doc. No. 25.) 20 III. CERTIFICATE OF APPEALABILITY 21 Pursuant to Rule 11 of the Rules following 28 U.S.C. § 2254, a district court “must 22 issue or deny a certificate of appealability when it enters a final order adverse to the 23 applicant.” A certificate of appealability is appropriate “only where a petitioner has made 24 a “substantial showing of the denial of a constitutional right.” Miller-El v. Cockrell, 537 25 U.S. 322, 336 (2003) (quoting 28 U.S.C. § 2253(c)(2)). The standard requires a petitioner 26 to show that reasonable jurists could debate whether the petition should have been resolved 27 28 1 ||in a different manner or that the issues presented were adequate to deserve encouragement 2 ||to proceed further. (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). For the 3 reasons set forth in the R&R and incorporated herein, the Court finds that this standard has 4 ||not been met and therefore DECLINES to issue a certificate of appealability. 5 |}IV. CONCLUSION 6 Based on the foregoing, the Court ADOPTS the R&R in its entirety, construes the 7 motion to dismiss as an Answer to the Petition,” and DENIES the Petition for Writ of 8 ||Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. Nos. 13, 25.) The Court further 9 || DECLINES to issue a certificate of appealability and DIRECTS the Clerk of Court to 10 |} enter judgment in favor of Respondent and close this case. 11 IT IS SO ORDERED. 12 Dated: March 28, 2022 © ¢ 13 Hon, Anthony J.Battaglia 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 ||* “(T]he Court has the inherent power under the Rules Governing Section 2254 Cases to construe Respondent’s motion to dismiss as an answer on the merits and Petitioner’s opposition to the motion to 27 || dismiss as a traverse.” Crim v. Benov, No. 10-cv-01600-OWW-JLT, 2011 WL 1636867, at *3 (E.D. Cal. 29, 2011), aff'd, 471 F. App’x 670 (9th Cir. 2012).