Sharif A. Eltawil v. David Phillips

Opinion

10 Case No. 8:23-cv-00489-FWS-PVC 11

12 SHARIF AZMI ELTAWIL, ORDER ACCEPTING FINDINGS, 13 CONCLUSIONS AND Petitioner, RECOMMENDATIONS OF UNITED 14 STATES MAGISTRATE JUDGE [11] 15 v. AND DENYING PETITION FOR HABEAS C ORPUS [1] 16 BRYAN D. PHILLIPS, ACTING 18 Respondent. 19

20 21 22 23 24 25 26 27 28 1 I. Introduction and Relevant Procedural History

2 Before the Court is the Magistrate Judge’s Report and Recommendation issued 3 on May 25, 2023 (the “Report and Recommendation”), (Dkt. 11), regarding the 4 Petition for Habeas Corpus (the “Petition”), (Dkt. 1), filed by Petitioner Sharif Azmi 5 Eltawil (“Petitioner”). Based on the state of the record, as applied to the applicable 6 law, the court adopts the Report and Recommendation issued by the Magistrate Judge, 7 including each of the findings of fact and conclusions of law therein. 8 On March 16, 2023, Petitioner filed the Petition. (Dkt. 1.) On May 25, 2023, 9 the Magistrate Judge issued the Report and Recommendation. (Dkt 11.) On or about 10 June 14, 2023, Plaintiff filed a “Motion Objecting to [the] Magistrate[’]s Report and 11 Recommendation” (the “Objections”). (Dkt. 12). 12 II. Analysis 13 “A judge of the court may accept, reject, or modify, in whole or in part, the 14 findings or recommendations made by the magistrate judge.” 28 U.S.C 15 § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (stating “[t]he district judge must 16 determine de novo any part of the magistrate judge’s disposition that has been 17 properly objected to,” and “[t]he district judge may accept, reject, or modify the 18 recommended disposition; receive further evidence; or return the matter to the 19 magistrate judge with instructions”). Proper objections require “specific written 20 objections to the proposed findings and recommendations” of the magistrate judge. 21 Fed. R. Civ. P. 72(b)(2). “A judge of the court shall make a de novo determination of 22 those portions of the report or specified proposed findings or recommendations to 23 which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also United States v. Reyna- 24 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“The statute makes it clear that the 25 district judge must review the magistrate judge’s findings and recommendations de 26 novo if objection is made, but not otherwise.”). Where no objection has been made, 27 arguments challenging a finding are deemed waived. See 28 U.S.C. § 636(b)(1)(C) 28 (“Within fourteen days after being served with a copy, any party may serve and file 1 written objections to such proposed findings and recommendations as provided by

2 rules of court.”). Moreover, “[o]bjections to a R&R are not a vehicle to relitigate the 3 same arguments carefully considered and rejected by the Magistrate Judge.” Chith v. 4 Haynes, 2021 WL 4744596, at *1 (W.D. Wash. Oct. 12, 2021).

5 In the Report and Recommendation, the Magistrate Judge recommends the 6 “Court issue an Order: (1) accepting and adopting this Report and Recommendation, 7 (2) denying the Petition for Habeas Corpus, and (3) directing that Judgment be entered 8 dismissing this action without prejudice as untimely.” (Dkt. 11 at 10.) In the 9 Objections, Plaintiff makes several assertions, including that “Equitable Tolling 10 should be given affect due to the ‘extraordinary circumstances’ beyond the prisoner’s 11 control.” (Dkt. 12 at 1.) 12 In this case, after conducting a de novo review of the Objections, the court 13 agrees with each of the findings of fact and conclusions of law set forth in the Report 14 and Recommendation, including the recommendation that “the AEDPA limitation 15 period expired on December 5, 2007, and Petitioner’s federal habeas petition is 16 untimely.” (Dkt. 11 at 9.) Accordingly, the Objections are OVERRULED on their 17 merits. 18 In sum, pursuant to 28 U.S.C. § 636, the Court has reviewed the record, 19 including the Report and Recommendation, the Petition, the Objections, and the other 20 files and records of the case. After conducting a de novo determination of the portions 21 of the Report and Recommendation to which the Objections pertain, the Court concurs 22 with and accepts the findings and conclusions of the Magistrate Judge in the Report 23 and Recommendation. 24 III. Conclusion 25 Based on the state of the record, as applied to the applicable law, the Court adopts 26 the Report and Recommendation, including each of the findings of fact and conclusions 27 of law therein. Accordingly, the Court orders the following: 28 ] 2 3 (1) The Petition is denied. 4 5 (2) Judgment is entered dismissing this action without prejudice as untimely. 6 7 (3) The Clerk is directed to serve copies of this Order and the Judgment 8 herein on Petitioner at his current address of record. 9 1 Lo LS /— 12 | Dated: July 10, 2023 Hon. Fred W. Slaughter 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28