Gilmore v. Woodford

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION and denying the petition for writ of habeas corpus. Signed by Judge Thomas J. Whelan on 9/8/06. (mam) Modified on 9/15/2006 to reopen case as this order has been VACATED by order of 9/14/06(mam).

Gilmore v. Woodford

Doc. 15

Case 3:05-cv-01863-W-WMC

Document 15

Filed 09/08/2006

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
STEVEN GILMORE, Petitioner, v. JEANNE WOODFORD, Acting Secretary of the California Department of Corrections and Rehabilitation, Respondent. Petitioner seeks 28 U.S. § 2254 habeas relief. On August 17, 2006 Magistrate Judge William McCurine, Jr. issued a Report and Recommendation ("Report") recommending that this Court deny the Petition. Objections to the Report were due no later than August 29, 2006. To date, Petitioner has neither submitted objections nor requested additional time in which to do so. A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
-105cv1863w

CASE NO. 05-CV-1863 W (WMc) ORDER ADOPTING THE REPORT & RECOMMENDATION AND DENYING THE PETITION

Dockets.Justia.com

Case 3:05-cv-01863-W-WMC

Document 15

Filed 09/08/2006

Page 2 of 2

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2003)(holding that 28 U.S.C. 636(b)(1)(c) "makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise")(emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Arizona 2003) (concluding that where no objections were filed the District Court had no obligation to review the magistrate judge's Report). This rule of law is well established within the Ninth Circuit and this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)("Of course, de novo review of a R & R is only required when an objection is made to the R & R)(emphasis added)(citing Renya-Tapia, 328 F.3d 1121); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopted Report without review because neither party filed objections to the Report despite the opportunity to do so, "accordingly, the Court will adopt the Report and Recommendation in its entirety."); see also Nichols v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.). Here, Plaintiff has tendered no objections to the Report nor requested an extension of time in which to do so. The Court therefore accepts Judge McCurine's recommendation that the Petition be denied and ADOPTS the Report in its entirety. For the reasons stated in the Report, which is incorporated herein by reference, the Court DENIES Petitioner's request for habeas relief. (Doc. No. 1.) The district court clerk shall close the district court case file. IT IS SO ORDERED. DATED: September 8, 2006 Hon. Thomas J. Whelan United States District Judge CC: ALL PARTIES HONORABLE WILLIAM MCCURINE, JR., UNITED STATES MAGISTRATE JUDGE

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05cv1863w