Wilkerson v. Donovan State Prison et al

Filing 18

ORDER: The Report and Recommendation (Doc. 15 ) is adopted. The First Amended Petition for Writ of Habeas Corpus (Doc. 3 ) is denied. Signed by Judge William Q. Hayes on 1/29/2009. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

MICHAEL WILKERSON, vs. ROBERT HORRELL, Warden, HAYES, Judge: Petitioner,

CASE NO. 08cv857 WQH (PCL) ORDER

Respondent. The matter before the Court is the review of the Report and Recommendation (Doc. # 15) filed on December 10, 2008 by United States Magistrate Judge Peter C. Lewis. Background On May 12, 2008, Petitioner Michael Wilkerson, a California state prisoner filing pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. # 1). On July 10, 2008, Petitioner filed the First Amended Petition ("FAP"). (Doc. # 3). The FAP asserts claims for (1) ineffectiveness of counsel; and (2) unfairness of the trial proceedings. The FAP states that Petitioner did not raise the second claim for relief in the California Supreme Court. FAP, p. 7. On December 10, 2008, United States Magistrate Peter C. Lewis issued a Report and Recommendation recommending that this Court dismiss the FAP on grounds that Petitioner failed to exhaust his state court remedies regarding the second claim for relief. (Doc. # 15). The Magistrate Judge ordered the parties to file any objections to the Report and
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Recommendation on or before December 31, 2008. On January 15, 2009, Petitioner filed an objection to the Report and Recommendation. (Doc. # 17). Petitioner's objection states in full: Petitioner filed additional pleading in accordance with the Court. I submit a series of handwritten communications, which was incoherent, do to a heart attack , this heart attack, has been covered up. I had a stroke, and a heart attack. Which would prevent me July 16 2008, that why it is difficult to ascertain what Petitioner is requesting, the reason, I could not, they try to, voluntarily dismissing the Petition while I was in the hospital July 16 2008 thru Sept. Objection, p. 1. Respondent has not filed objections to the Report and Recommendation. Applicable Law The duties of the district court in connection with the 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). The district judge "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b). The district court need not review de novo those portions of a Report and Recommendation to which neither party objects. Wang v. Masaitis, 416 F.3d 992, 100 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). Ruling of the Court Neither party objected to the Magistrate Judge's conclusion that Petitioner failed to exhaust his state court remedies with respect to the FAC's second claim for relief. Petitioner's objection does not assert that the Report and Recommendation erred in recommending that this Court dismiss the FAC on grounds that Petitioner failed to exhaust his state court remedies. The Court has reviewed Report and Recommendation and the portions to which Petitioner objected de novo, and concludes that the Magistrate Judge correctly concluded that the FAC should be dismissed as unexhausted. /// ///

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08cv857 WQH

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Conclusion IT IS HEREBY ORDERED that the Report and Recommendation (Doc. # 15) is ADOPTED. The First Amended Petition for Writ of Habeas Corpus (Doc. # 3) is DENIED.

WILLIAM Q. HAYES United States District Judge

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