Elmo Smith Jr v. Debbie Asuncion, No. 2:2017cv06405 - Document 14 (C.D. Cal. 2018)

Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge John A. Kronstadt for Report and Recommendation (Issued), 9 . (See document for further details.) (sbou)

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Elmo Smith Jr v. Debbie Asuncion Doc. 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 ELMO SMITH, JR., 13 14 15 16 17 Petitioner, v. DEBBIE ASUNCION, Respondent. ) ) ) ) ) ) ) ) ) ) ) Case No. CV 17-6405-JAK (JEM) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 18 On November 14, 2017, Respondent filed a Motion to Dismiss the Petition as 19 untimely. Despite having received an extension of time, Petitioner did not file an Opposition 20 to the Motion by the January 4, 2018 deadline. On January 10, 2018, the Magistrate Judge 21 issued a Report and Recommendation recommending that Respondent’s Motion to Dismiss 22 be granted. On January 24, 2018, Petitioner filed a request for extension of time to file an 23 Opposition to the Motion to Dismiss. On January 26, 2018, the Magistrate Judge granted 24 Petitioner’s request. On February 12, 2018, Petitioner filed an Opposition to the Motion to 25 Dismiss, in which he addresses the Motion to Dismiss and the Report and Recommendation 26 in arguing that he is actually innocent and is entitled to an evidentiary hearing. 27 28 Dockets.Justia.com 1 Pursuant to 28 U.S.C. Section 636, the Court has reviewed the pleadings, the 2 records on file, and the Report and Recommendation of the Magistrate Judge. The Court 3 has engaged in a de novo review of the Report and Recommendation in light of Petitioner’s 4 arguments. The Court accepts the findings and recommendations of the Magistrate Judge. 5 6 IT IS ORDERED that: (1) the Petition for Writ of Habeas Corpus is denied; and (2) Judgment shall be entered dismissing the action with prejudice. 7 8 DATED: March 5, 2018 JOHN A. KRONSTADT UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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