Bennett v. Smelosky et al

Filing 13

ORDER Denying Petition for Writ of Habeas Corpus: The Court has reviewed the 9 Report and Recommendation, finds it to be correct, and therefore adopts it. Signed by Judge Larry Alan Burns on 9/1/09. (All non-registered users served via U.S. Mail Service).(pdc) (kaj).

1 2 3 4 5 6 7 8 9 10 11 12 vs. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On October 14, 2008, Petitioner, a prisoner proceeding pro se, filed his Petition in this Court seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. §636(b)(1)(B) and Civil Local Rule 72.1(d), this matter was referred to Magistrate Judge Leo Papas for report and recommendation. Judge Papas issued his report and recommendation (the "R&R") on April 3, 2009. The R&R granted the parties until May 4, 2009 to file any objections. Petitioner then sought an extension of time in which to file his objections to the R&R, stating he had not had access to the prison law library to research his claims. Although he requested May 11 as the new date by which objections were to be filed, the Court granted an extension until June 8, 2009. He has filed nothing further in this case. Petitioner also brought another case in this Court, case number 08cv1553, Bennett v. George Bailey Detention Facility, pursuant to 42 U.S.C. § 1983, which is pending before Judge Marilyn Huff. He submitted a letter dated August 24, 2009 saying he had recently been transferred to a different facility and had lost his legal materials pertaining to that case. -108CV1877

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

W ILLIE E. BENNETT, Petitioner, MICHAEL A. SMELOSKY, et al., Respondents.

CASE NO. 08CV1877-LAB (LSP) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

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He therefore sought an extension of time to respond to the motion to dismiss in that case. (Docket no. 28.) The Court sua sponte takes notice of that letter, for purposes of showing the fact that he was able to file pleadings, and of showing his representations to the Court. See Fed. R. Evid. 201(c); In re Heritage Bond Litigation, 546 F.3d 667, 670 n.1 (9th Cir. 2008). Petitioner was required, however, to file a notice of change of address in this case as well. See Civil Local Rule 83.11(b) (requiring pro se litigants to keep the Court and opposing parties advised as to his current address.) The Court therefore concludes Petitioner could have sought additional time in which to file his objections, but chose not to do so. In view of the R&R's recommendations, which are based on well-established precedents, it appears Petitioner recognizes federal habeas relief is unavailable to him and has chosen to abandon his Petition. A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. §636(b)(1). The Court has reviewed the R&R, finds it to be correct, and therefore ADOPTS it. The Petition is DENIED. IT IS SO ORDERED. DATED: September 1, 2009

HO N O R AB LE LARRY ALAN BURNS United States District Judge

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08CV1877