Maxwell v. Walker

Filing 17

ORDER Adopting 16 Report and Recommendations and Granting 15 Motion to Dismiss First Amended Petition for Writ of Habeas Corpus: IT IS ORDERED adopting the Report and Recommendation in its entirety and granting respondents motion to dismiss the first amended petition for writ of habeas corpus. Signed by Judge M. James Lorenz on 8/24/2010. (All non-registered users served via U.S. Mail Service)(mjj)

Maxwell v. Walker

Doc. 17

1 2 3 4 5 6 7 8 9 10 11 CLIFTON WAYNE MAXWELL, 12 13 v. 14 GEORGE A. NEOTTI, Warden. 15 16 17 Respondent. Petitioner, ) ) ) ) ) ) ) ) ) ) ) Civil No. 09cv2660 L (BLM) ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION TO DISMISS FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS [doc. #15] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Petitioner Clifton Wayne Maxwell, a state prisoner, filed a petition for a writ of habeas

18 corpus under 28 U.S.C. § 2254 and later filed an amended petition. The case was referred to 19 United States Magistrate Judge Barbara L. Major for a report and recommendation ("Report") 20 pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). In the Report, the magistrate 21 judge recommended the granting of respondent's motion to dismiss the first amended petition 22 because the amended petition is moot. . 23 In reviewing a magistrate judge's report and recommendation, the district court "shall

24 make a de novo determination of those portions of the report . . . to which objection is made," 25 and "may accept, reject, or modify, in whole or in part, the findings or recommendations made 26 by the magistrate judge." 28 U.S.C. § 636(b)(1). Under this statute, "the district judge must 27 review the magistrate judge's findings and recommendations de novo if objection is made, but 28 not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)
09cv2660

Dockets.Justia.com

1 (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2 2003) (applying Reyna-Tapia to habeas review). 3 Objections to the Report were to be filed by August 5, 2010. To date, neither party has

4 filed an objection to the Report. Accordingly, IT IS ORDERED adopting the Report and 5 Recommendation in its entirety and granting respondent's motion to dismiss the first amended 6 petition for writ of habeas corpus. 7 IT IS SO ORDERED.

8 DATED: August 24, 2010 9 10 11 COPY TO: 12 BARBARA L. MAJOR UNITED STATES MAGISTRATE JUDGE 13 14 ALL COUNSEL/PARTIES 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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M. James Lorenz United States District Court Judge