Nguyen v. Giurbino, et al

Filing 38

VACATED PER ORDER FILED 10/27/2008 (DOC. 44 ) - ORDER: All portions of the Report and Recommendation ( 30 ) are adopted. The Petition for Writ of Habeas Corpus ( 1 ) and the Amended Petition for Writ of Habeas Corpus ( 27 ) are denied, Petitioner's request for an evidentiary hearing is denied, and Petitioner's request for appointment of counsel is denied. Signed by Judge William Q. Hayes on 2/5/08. (mdc) Modified on 10/27/2008 to indicate vacated status. (mdc)

Nguyen v. Giurbino, et al

Doc. 38

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1HAYES, Judge: The matter before the Court is the review of the Report and Recommendation (Doc. # 30) filed on June 7, 2007 by Magistrate Judge William McCurine, Jr. Background On December 15, 2005, Petitioner Linh N. Nguyen filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. # 1). On January 16, 2007, Petitioner filed an Amended Petition for Writ of Habeas Corpus. (Doc. # 27). On June 7, 2007, United States Magistrate Judge McCurine issued a Report and Recommendation recommending that this Court deny the Petition and Amended Petition, deny Petitioner's request for an evidentiary hearing and deny Petitioner's request for appointment of counsel. (Doc. # 30). On July 31, 2007, this Court issued an Order adopting the Report and Recommendation in its entirety. (Doc. # 31). On August 1, 2007, the Clerk of the Court entered judgment in favor of Respondent and against Petitioner. (Doc. # 32). LINH N. NGUYEN, vs. GEORGE GIURBINO, Warden, Petitioner, CASE NO. 05cv2287 WQH (WMc) ORDER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Respondent.

05cv2287 WQH (WMc)

Dockets.Justia.com

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On September 5, 2007, Petitioner filed a Motion to Vacate Judgment Pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. (Doc. # 34). The Motion to Vacate asserted that Petitioner never received a copy of the June 7, 2007 Report and Recommendation and requested the Court to issue an order that he be served with a copy of the June 7, 2007 Report and Recommendation, be given an opportunity to submit timely objections, and have the Court render a decision upon review of any objections submitted by Petitioner. On September 13, 2007, Respondent filed a Response to the Motion to Vacate which agreed that if in fact Petitioner did not receive a copy of the Report and Recommendation, he would be entitled to relief under Rule 60 of the Federal Rules of Civil Procedure. (Doc. # 36). On November 14, 2007, this Court issued an Order granting the Motion to Vacate Judgment and vacated the July 31, 2007 Order adopting the Report and Recommendation. (Doc. # 37). The Court stated: "Any party may file objections to the Report and Recommendation no later than Monday, December 17, 2007. Any party may file a reply to the objections to the Report and Recommendation no later than Monday, January 7, 2008." Order Granting Motion to Vacate, p. 3. The docket indicates that Petitioner was served with a copy of the Order Granting the Motion to Vacate Judgment and the Report and Recommendation at the following address: Linh Nguyen T-48024 Calipatria State Prison P.O.Box 5002 Calipatria, CA 92253-5002 Neither party filed objections to the Report and Recommendation.

Standard of Review The duties of the district court in connection with a Report and Recommendation of a Magistrate Judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When the parties object to a Report and Recommendation, "[a] judge of the [district] court shall make a de novo determination of those portions of the [Report and Recommendation] to which objection is made." 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). When no objections are filed, the district court need not review the Report and Recommendation de novo. Wang v. Masaitis, 416
-205cv2287 WQH (WMc)

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F.3d 992, 1000 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). Ruling of the Court Neither party filed objections to the Report and Recommendation. The Court has reviewed all aspects of the Report and Recommendation of the Magistrate Judge filed on June 7, 2007, and adopts all portions of the Report and Recommendation. The Report and Recommendation correctly concluded that Petitioner failed to show that he is entitled to federal habeas relief under the applicable legal standards, that Petitioner's request for an evidentiary hearing should be denied, and that Petitioner is not entitled to counsel. IT IS HEREBY ORDERED that all portions of the Report and Recommendation (Doc. # 30) are ADOPTED. The Petition for Writ of Habeas Corpus (Doc. # 1) and the Amended Petition for Writ of Habeas Corpus (Doc. # 27) are DENIED, Petitioner's request for an evidentiary hearing is DENIED, and Petitioner's request for appointment of counsel is DENIED.
DATED: February 5, 2008 WILLIAM Q. HAYES United States District Judge

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05cv2287 WQH (WMc)