Anthony Alvarez v. Michael A. Smelesky

Filing 13

ORDER ADOPTING 12 REPORT AND RECOMMENDATIONS and Dismissing With Prejudice Petition for Writ of Habeas Corpus: Because no objections have been filed, the Court adopts the Report in its entirety and dismisses the petition with prejudice. Signed by Judge M. James Lorenz on 8/24/2009. (All non-registered users served via U.S. Mail Service).(mjj)(kaj).

1 2 3 4 5 6 7 8 9 10 11 ANTHONY ALVAREZ, 12 13 v. 14 MICHAEL SMELESKY, 15 16 17 Respondent. Petitioner, ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv2422 L(CAB) ORDER ADOPTING REPORT AND RECOMMENDATIONS and DISMISSING WITH PREJUDICE PETITION FOR WRIT OF HABEAS CORPUS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Petitioner Anthony Alvarez, a state prisoner proceeding pro se, filed a petition for writ of

18 habeas corpus under 28 U.S.C. § 2254. The case was referred to United States Magistrate Judge 19 Cathy Ann Bencivengo for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) 20 and Civil Local Rule 72.1(d). In an Order filed January 9, 2009, the Court dismissed the petition 21 for failure to satisfy the filing fee requirement and to use a court-approved form. Plaintiff 22 previously filed a petition for writ of habeas corpus, 06cv2112 WQH (JMA). Therefore, he was 23 required to file a first amended petition stating that he is now challenging a different San Diego 24 Superior Court conviction or a first amended petition with an Order from the Ninth Circuit 25 Court of Appeals stating that petitioner may file a successive petition with this Court. Plaintiff 26 was also ordered to either pay the $5.00 filing fee or provide adequate proof of his inability to 27 pay the fee. (See Order filed January 9, 2009 [doc. #8].) Although petitioner filed a motion for 28 leave to proceed in forma pauperis, which was granted, he did not file a first amended petition.
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On July 15, 2009, 2009, the Magistrate Judge issued a Report and Recommendation

2 ("Report"), recommending that the petition be dismiss with prejudice for failure to comply with 3 the Court's previous order and because it is a second or successive petition. Any objections 4 were to be filed no later than August 17, 2009. 5 In reviewing a magistrate judge's report and recommendation, the district court "shall

6 make a de novo determination of those portions of the report . . . to which objection is made," 7 and "may accept, reject, or modify, in whole or in part, the findings or recommendations made 8 by the magistrate judge." 28 U.S.C. § 636(b)(1). Under this statute, "the district judge must 9 review the magistrate judge's findings and recommendations de novo if objection is made, but 10 not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc) 11 (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 12 2003) (applying Reyna-Tapia to habeas review). Petitioner did not object to the Report or seek 13 additional time in which to file objections to the Report. 14 Because no objections have been filed, the Court adopts the Report in its entirety and

15 dismissed the petition with prejudice. 16 IT IS SO ORDERED.

17 DATED: August 24, 2009 18 19 20 COPY TO: 21 HON. CATHY ANN BENCIVENGO UNITED STATES MAGISTRATE JUDGE 22 23 ALL PARTIES/COUSEL 24 25 26 27 28
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M. James Lorenz United States District Court Judge