Mohammad Khan v. Steve Langford

Filing 17

ORDER Adopting the Report & Recommendation; Denying the Habeas Corpus Petition; Dismissing the Action With Prejudice; Directing Separate Final Judgment Terminating and Closing Action (JS-6) by Judge Valerie Baker Fairbank for Report and Recommend ation (Issued) 16 , 9 . The Report and Recommendation [Doc #16] is ADOPTED. The Second Amended Petition for a Writ of Habeas Corpus [Doc #9] is DENIED. As required by Fed. R. Civ. P. 58(a), the Court will enter judgment by separate document. This action is DISMISSED with prejudice. The case SHALL BE TERMINATED and closed (JS-6). (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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____________________________________
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MOHAMMAD KHAN,
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Petitioner,
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v.
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STEVE LANGFORD (Warden),
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Respondent.
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No. LA CV 17-02750-VBF-KS
ORDER
Adopting the Report & Recommendation;
Denying the Habeas Corpus Petition;
Dismissing the Action With Prejudice;
Directing Separate Final Judgment;
Terminating and Closing Action (JS-6)

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This is an action for a Writ of Habeas Corpus by a Person in State Custody Pursuant

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to 28 U.S.C. § 2241. Pursuant to her authority under Fed. R. Civ. P. 72(b)(1), title 28 U.S.C.

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§ 636(b)(1)(B), and C.D. Cal. Local Civil Rule 72-3.3, the United States Magistrate Judge

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issued a Report and Recommendation (“R&R”) on January 29, 2018. See CM/ECF

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Document (“Doc”) Doc 16. Petitioner has not filed objections to the R&R within the time

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allotted by Local Civil Rule 72-3.3. See Sudduth v. Soto, No. 2016 WL 4035337, *1 (C.D.

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Cal. July 12, 2016) (“This Court never rules on an R&R without waiting for the objection

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deadline to pass, and it will not rule on the R&R here until at least one week after . . .

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[petitioner]’s objection deadline elapses . . . .”). Nor has petitioner sought an extension of

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the objection deadline. Accordingly, the Court proceeds without waiting further.

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Pursuant to 28 U.S.C. § 636(b)(1), the Court has reviewed the Second Amended

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Habeas Petition filed July 21, 2017 (Doc 9), the respondent’s Return (Doc 12), petitioner’s

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traverse filed November 20, 2017 (Doc 14), the R&R (Doc 16), and the applicable law.

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By its terms, Federal Rule of Civil Procedure 72(b)(3) requires de novo review only

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of those portions of an R&R to which a party has specifically objected. See Dawson v.

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Marshall, 561 F.3d 930, 932 (9th Cir. 2009) (citing 28 U.S.C. § 636(b)(1)( C) and US v.

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Howell, 231 F.3d 615, 622 (9th Cir. 2000)); see also US v. Reyna-Tapia, 328 F.3d 1114, 1121

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(9th Cir. 2003) (en banc)). The Ninth Circuit holds that absent a timely objection purporting

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to identify specific defects in the R&R, the District Judge has no obligation to review the

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R&R at all. See Reyna-Tapia, 328 F.3d at 1121 (en banc); see also Thomas v. Arn, 474 U.S.

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140, 152, 106 S. Ct. 466, 473 (1985) (“There is no indication that Congress, in enacting [the

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Magistrates Act], intended to require a district judge to review a magistrate’s report.[.]”)).

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Accord Mario v. P&C Food Markets, 313 F.3d 758, 766 (2d Cir. 2002).

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“Nonetheless, the Magistrates Act does not preclude a district judge from reviewing

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an R&R to make sure that it recommends a legally permissible and appropriate outcome

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(based on sound reasoning and valid precedent) if she chooses to do so.” Juarez v. Katavich,

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2016 WL 2908238, *2 (C.D. Cal. May 17, 2016) (citing Beard, 2013 WL 3934188 at *1

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(quoting Thomas, 474 U.S. at 154)). “‘Indeed, the Advisory Committee Notes to Fed. R.

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Civ. P. 72(b) recommend that [w]hen no timely objection is filed, the Court review the

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magistrate’s recommendations for clear error on the face of the record.’” Juarez, 2016 WL

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2908238 at *2 (quoting Beard, 2013 WL 3934188 at *1).

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Out of an abundance of caution, then, the Court has reviewed the R&R. On

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either clear-error or de novo review, the Court finds no defect of law, fact, or logic in

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the R&R. Therefore the Court will adopt the R&R and implement its recommendations.

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ORDER

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The Report and Recommendation [Doc #16] is ADOPTED.

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The Second Amended Petition for a Writ of Habeas Corpus [Doc #9] is DENIED.

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As required by Fed. R. Civ. P. 58(a), the Court will enter judgment by separate

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document. See Jayne v. Sherman, 706 F.3d 994, 1009 (9th Cir. 2013).1

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This action is DISMISSED with prejudice.

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The case SHALL BE TERMINATED and closed (JS-6).

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Dated: March 8, 2018

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___________________________

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Hon. Valerie Baker Fairbank
Senior United States District Judge

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“As a federal prisoner proceeding under 28 U.S.C. § 2241, Petitioner is not required to obtain
a certificate of appealability (‘COA’) in order to appeal to the United States Court of Appeals in this
case.” Fiorito v. Entzel, 2018 WL 702834, *1 (C.D. Cal. Feb. 1, 2018) (John Walter, J.) (citing,
inter alia, Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008) (holding that plain language of 28
U.S.C. § 2253( c)(1) does not require federal prisoners bringing section 2241 actions to obtain a
COA unless the putative 2241 petition “is merely a ‘disguised’ section 2255 petition”)).

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“Our circuit interprets section 2253 to require only habeas petitioners in custody pursuant to
a state-court judgment to obtain a COA before appealing a final order denying a section 2241 claim.”
Tomlinson v. Caraway, 2014 WL 4656432, *1 n.1 (C.D. Cal. Sept. 16, 2014) (citing Harrison, 519
F.3d at 958). Accord Stryker v. Bear, – F. App’x -, 2018 WL 921974, *1 (10th Cir. 2018).

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