Domenico G Diaz v. Dean Borders

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