McDonald v. Haaws

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATION; Denying 24 Motion to Dismiss Second Amended Petition; and Requiring Response: Respondent shall answer the second amended petition within 30 days of the filing of this Order. Signed by Judge M. James Lorenz on 2/8/2010.(All non-registered users served via U.S. Mail Service)(mjj) (jrl).

1 2 3 4 5 6 7 8 9 10 11 JOSEPH HILTON McDONALD, 12 13 v. 14 E.B. HAAWS, 15 16 17 Respondent. Petitioner, ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv652 L(PCL) ORDER ADOPTING REPORT AND RECOMMENDATION; DENYING MOTION TO DISMISS SECOND AMENDED PETITION [doc. #24]; and REQUIRING RESPONSE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Petitioner Joseph Hilton McDonald, a state prisoner, filed a petition for a writ of habeas

18 corpus under 28 U.S.C. § 2254. The case was referred to United States Magistrate Judge Peter 19 C. Lewis for a report and recommendation ("Report") pursuant to 28 U.S.C. § 636(b)(1)(B) and 20 Civil Local Rule 72.1(d). In the Report, the magistrate judge recommended denial of 21 respondent's motion to dismiss the second amended petition. Neither party filed an objection to 22 the Report. 23 In reviewing a magistrate judge's report and recommendation, the district court "shall

24 make a de novo determination of those portions of the report . . . to which objection is made," 25 and "may accept, reject, or modify, in whole or in part, the findings or recommendations made 26 by the magistrate judge." 28 U.S.C. § 636(b)(1). Under this statute, "the district judge must 27 review the magistrate judge's findings and recommendations de novo if objection is made, but 28 not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)
08cv652

1 (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2 2003) (applying Reyna-Tapia to habeas review). 3 As noted above, neither petitioner nor respondent objected to any portion of the Report.

4 Having reviewed the Report, the Court finds that dismissal of the second amended petitioner on 5 exhaustion grounds is not warranted. Accordingly, IT IS ORDERED adopting the Report and 6 Recommendation in its entirety. IT IS FURTHER ORDERED denying respondent's motion to 7 dismiss the second amended petition. IT IS FURTHER ORDERED that respondent shall 8 answer the second amended petition within 30 days of the filing of this Order. 9 IT IS SO ORDERED.

10 DATED: February 8, 2010 11 12 13 COPY TO: 14 HON. PETER C. LEWIS UNITED STATES MAGISTRATE JUDGE 15 16 ALL PARTIES/COUNSEL 17 18 19 20 21 22 23 24 25 26 27 28
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M. James Lorenz United States District Court Judge