Brown v. Small et al

Filing 12

ORDER: (1) Adopting (Doc. 11 ) Report and Recommendation; (2) Granting (Doc. 5 ) Motion to Dismiss Without Prejudice. Should Petitioner choose to amend his Petition he must do so on or before June 25, 2010. Signed by Judge Thomas J. Whelan on 5/24/2010. (All non-registered users served via U.S. Mail Service)(cap)(kaj).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 On September 18, 2009, Petitioner William Brown ("Petitioner"), a state prisoner 21 proceeding pro se, filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 22 2254. (Doc. No. 1.) Petitioner challenges his 1997 conviction for voluntary manslaughter 23 and assault with a deadly weapon. (Doc. No. 11 at 2.) 24 On April 23, 2010, Magistrate Judge Peter C. Lewis issued a Report and 25 Recommendation ("Report"), recommending that the Court grant the pending motion to 26 dismiss the Petition. The Report also ordered that any objections were to be filed by May 27 7, 2010. (Report at 6.) To date, no objection has been filed, nor has there been a request for 28 additional time in which to file an objection.
-109cv 2058w

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
WILLIAM BROWN, Petitioner, v. CASE NO. 09-CV-2058 W (PCL) ORDER: (1) ADOPTING REPORT AND RECOMMENDATION (DOC. NO. 11.) (2) GRANTING MOTION TO DISMISS (DOC. NO. 5.)

MATTHEW CATE, et al., Respondents.

1

A district court's duties concerning a magistrate judge's report and recommendation

2 and a respondent's objections thereto are set forth in Rule 72(b) of the Federal Rules of 3 Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court 4 is not required to review the magistrate judge's report and recommendation. See United 5 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(holding that 28 U.S.C. 6 636(b)(1)(c) "makes it clear that the district judge must review the magistrate judge's 7 findings and recommendations de novo if objection is made, but not otherwise")(emphasis in 8 original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Arizona 2003) (concluding 9 that where no objections were filed, the District Court had no obligation to review the 10 magistrate judge's Report). This rule of law is well established within the Ninth Circuit and 11 this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)("Of course, 12 de novo review of a R & R is only required when an objection is made to the R & 13 R.")(emphasis added)(citing Renya-Tapia, 328 F.3d 1121); Nelson v. Giurbino, 395 F. 14 Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopted Report without review because 15 neither party filed objections to the Report despite the opportunity to do so, "accordingly, 16 the Court will adopt the Report and Recommendation in its entirety."); see also Nichols 17 v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.). 18 The Court, therefore, accepts Judge Lewis' recommendation, and ADOPTS the 19 Report (Doc. No. 24) in its entirety. For the reasons stated in the Report, which is 20 incorporated herein by reference, the Court DISMISSES the Petition WITHOUT 21 PREJUDICE. (Doc. No. 1.) Should Petitioner choose to amend his Petition he must do 22 so on or before June 25, 2010. 23 24 25 26 27 28 -209cv 2058w

IT IS SO ORDERED. DATED: May 24, 2010 Hon. Thomas J. Whelan United States District Judge