Sutton v. Gore

Filing 26

ORDER adopting 24 the Magistrate Judge's Report and Recommendation and granting 9 the Warden's Motion to Dismiss Petitioner's First Amended Habeas Petition without prejudice. Signed by Judge John A. Houston on 9/21/2017. (All non-registered users served via U.S. Mail Service)(jpp) (sjt).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL SUTTON Case No.: 16cv1854-JAH (AGS) Petitioner, 12 13 v. 14 ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AND GRANTING THE WARDEN’S MOTION TO DISMISS PETITIONER’S FIRST AMENDED HABEAS PETITION [DOC NO. 24 ] WILLIAM D. GORE, WARDEN 15 Respondent. 16 17 18 BACKGROUND 19 On July 16, 2016, Petitioner Michael Sutton, a state prisoner proceeding pro se 20 (“Petitioner”), concurrently filed a petition for writ of habeas corpus pursuant to 28 U.S.C. 21 § 2254, and a motion for leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. 22 § 1915(a). See Doc. Nos. 1-2. Petitioner’s IFP motion was granted, but the case was 23 nevertheless dismissed without prejudice for failure to allege exhaustion of state judicial 24 remedies. See Doc. No. 4. Petitioner timely filed his amended habeas petition on 25 September 1, 2016. See Doc. No. 5. Thereafter, on November 3, 2016, Warden William D. 26 Gore (“Respondent”), timely filed his motion to dismiss the amended petition, arguing that 27 the petition was improperly brought because Petitioner failed to exhaust his state court 28 remedies. See Doc. No. 9 (citing 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 1 16cv1854-JAH (AGS) 1 275 (1971); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008)). On March 31, 2017, 2 Petitioner filed his response in opposition to Respondent’s motion. See Doc. No. 16. On 3 July 7, 2017, the Honorable Andrew G. Schopler, United States Magistrate Judge, ordered 4 Petitioner to file proof that he has exhausted his state court remedies or show cause why 5 his case should not be dismissed for failure to exhaust.1 See Doc. Nos. 22, 23. 6 On July 27, 2017, pursuant to 28 U.S.C. § 636(b)(1), Judge Schopler, submitted a 7 report and recommendation (“Report”) to this Court recommending that Respondent’s 8 motion to dismiss Petitioner’s habeas petition be granted. See Doc. No. 24. Judge Schopler 9 found that Petitioner failed to provide evidence that he exhausted his claims despite his 10 opportunity to do so. Id. Pursuant to Fed. R. Civ. P. 72(b)(2), objections to the Report were 11 due no later than August 10, 2017. No objections were timely received. Accordingly, for 12 the reasons set forth below, this Court ADOPTS the Magistrate Judge’s Report in its 13 entirety, and DISMISSES WITHOUT PREJUDICE Petitioner’s amended habeas 14 petition. 15 // 16 // 17 // 18 19 20 21 22 23 24 25 26 27 28 The docket indicates that Judge Schopler’s order to show cause was sent to Petitioner at the Vista Detention Center, in Vista, California; but was returned as undeliverable. See Doc. No. 23. Here, the Court notes that “[a] party proceeding pro se must keep the court and opposing parties advised as to current address. If mail directed to a pro se plaintiff by the clerk at the plaintiff’s last designated address is returned by the Post Office, and if such plaintiff fails to notify the court and opposing parties within 60 days thereafter of the plaintiff’s current address, the court may dismiss the action without prejudice.” See CivLR 83.11(b); see also Carey v. King, 856 F.2d 1439 (9th Cir. 1988) (“A party, not the district court, bears the burden of keeping the court apprised of any changes in his mailing address.”). Sixty days have passed since the Report was returned as undeliverable by the Post Office. Petitioner has failed to comply with CivLR 83.11 requiring that a pro se party keep the court and opposing parties advised as to his current address. 1 2 16cv1854-JAH (AGS) 1 DISCUSSION 2 The district court’s role in reviewing a magistrate judge’s report and 3 recommendation is set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 4 U.S.C. § 636(b)(1). When a party objects to the magistrate judge’s report and 5 recommendation, the district court “shall make a de novo determination of those portions 6 of the report . . . to which objection is made,” and may “accept, reject, or modify, in whole 7 or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 8 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). 9 When no objections are filed, the district court is not required to review the 10 magistrate judge’s report and recommendation. See Wang v. Masaitis, 416 F.3d 992, 1000 11 n. 13 (9th Cir. 2005) (stating that “de novo review of a [magistrate judge’s report and 12 recommendation] is only required when an objection is made”); United States v. Reyna– 13 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that 28 U.S.C. § 636(b)(1)(c) 14 “makes it clear that the district judge must review the magistrate judge’s findings and 15 recommendations de novo if objection is made, but not otherwise”). This rule of law is well 16 established within the Ninth Circuit and this district. See Hasan v. Cates, No. 11–cv–1416, 17 2011 WL 2470495 (S.D. Cal. June 22, 2011) (Whelan, T.) (adopting in its entirety, and 18 without review, a report and recommendation because neither party filed objections to the 19 report despite having the opportunity to do so); accord Ziemann v. Cash, No. 11–cv–2496, 20 2012 WL 5954657 (S.D. Cal. Nov. 26, 2012) (Benitez, R.); Rinaldi v. Poulos, No. 08–cv– 21 1637, 2010 WL 4117471 (S.D. Cal. Oct. 18, 2010) (Lorenz, J.). 22 Here, the record reflects that no party filed objections to the Report. Thus, in the 23 absence of any objections, the Court ADOPTS the Report. For the reasons stated in the 24 Report, which is incorporated herein by reference, the amended petition is DISMISSED 25 WITHOUT PREJUDICE. The Clerk of Court shall enter judgment reflecting the 26 foregoing. 27 // 28 // 3 16cv1854-JAH (AGS) 1 IT IS SO ORDERED. 2 3 DATED: September 21, 2017 4 5 6 _________________________________ JOHN A. HOUSTON United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 16cv1854-JAH (AGS)

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