Anderson v. Martel et al

Filing 20

ORDER ADOPTING 19 REPORT AND RECOMMENDATION and Denying 1 Petition with Prejudice. Signed by Judge Thomas J. Whelan on 8/31/09. (All non-registered users served via U.S. Mail Service).(mkz) (kaj).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 M. MARTEL, Warden, et al., v. ROBBYE RAY ANDERSON, Petitioner, CASE NO. 08-CV-1031 W (AJB) ORDER (1) ADOPTING REPORT AND RECOMMENDATION (DOC. NO. 19), AND (2) DENYING PETITION (DOC. NO. 1)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Respondents. On June 9, 2008, Petitioner Robbye Ray Anderson, proceeding pro se, filed this

16 Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges 17 his San Diego Superior Court convictions for furnishing, giving away or offering to sell 18 cocaine base, possession of cocaine base for sale, and possession of drug paraphernalia. On December 2, 2008, Respondents filed an Answer to the Petition, accompanied 19 20 by a Memorandum of Points and Authorities in support thereof. On March 19, 2009, the 21 Honorable Magistrate Anthony J. Battaglia issued a Report and Recommendation 22 ("Report"), recommending that the Court deny the Petition with prejudice. The Report 23 also ordered that any objections were to be filed by April 20, 2009, and any reply filed by 24 May 4, 2009. To date, no objection has been filed, nor has there been a request for 25 additional time in which to file an objection. 26 A district court's duties concerning a magistrate judge's report and recommendation 27 and a respondent's objections thereto are set forth in Rule 72(b) of the Federal Rules of 28 Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court
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1 is not required to review the magistrate judge's report and recommendation. See United 2 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(holding that 28 U.S.C. 3 636(b)(1)(c) "makes it clear that the district judge must review the magistrate judge's 4 findings and recommendations de novo if objection is made, but not otherwise")(emphasis in 5 original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Arizona 2003) (concluding 6 that where no objections were filed, the District Court had no obligation to review the 7 magistrate judge's Report). This rule of law is well established within the Ninth Circuit and 8 this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)("Of course, 9 de novo review of a R & R is only required when an objection is made to the R & 10 R.")(emphasis added)(citing Renya-Tapia, 328 F.3d 1121); Nelson v. Giurbino, 395 F. 11 Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopted Report without review because 12 neither party filed objections to the Report despite the opportunity to do so, "accordingly, 13 the Court will adopt the Report and Recommendation in its entirety."); see also Nichols 14 v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.). 15 The Court, therefore, accepts Judge Battaglia's recommendation, and ADOPTS the 16 Report (Doc. No. 19) in its entirety. For the reasons stated in the Report, which is 17 incorporated herein by reference, the Court DENIES Petitioner request for habeas relief 18 and DISMISSES the Petition (Doc. No. 1) WITH PREJUDICE. 19 20 22 23 24 25 26 27 28 -208cv1441w

IT IS SO ORDERED.

21 DATED: August 31, 2009 Hon. Thomas J. Whelan United States District Judge