Fulcher v. Hatton

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATION. Court approves and adopts 11 Report and Recommendation in its entirety, grants Petitioner's 10 Motion for Voluntary Dismissal, and terminates as moot Respondent's 7 Motion to Dismiss. Clerk directed to close the file. Signed by Judge Cynthia Bashant on 2/17/2017. (All non-registered users served via U.S. Mail Service) (jah) (Main Document 12 replaced on 2/17/2017) (jah). Modified on 2/17/2017 - Wrong pdf attached. Corrected image and regenerated NEF (jah).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DONNELL D. FULCHER,

Case No. 16-cv-02041-BAS-BGS
Petitioner,

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ORDER:
(1) APPROVING AND
ADOPTING REPORT AND
RECOMMENDATION IN ITS
ENTIRETY (ECF No. 11);

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v.
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S. HATTON, Warden,

(2) GRANTING PETITIONER’S
MOTION FOR VOLUNTARY
DISMISSAL (ECF No. 10);
AND

Respondent.

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(3) TERMINATING AS MOOT
RESPONDENT’S MOTION TO
DISMISS (ECF No. 7)

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Petitioner, a state prisoner proceeding pro se and in forma pauperis, submitted

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a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 1.)

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Respondent moves to dismiss the Petition. (ECF No. 7.) Respondent argues the

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Petition should be dismissed because Petitioner previously challenged the same

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conviction in Fulcher v. R.H. Trimble, Case No. 11-cv-0959-CAB-WMC (S.D. Cal.

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filed May 2, 2011). (Id.) In addition, Petitioner moves for voluntary dismissal of his
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Petition. (ECF No. 10.) In his motion, Petitioner concedes that he lacks leave from

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the Ninth Circuit Court of Appeals to file this second and successive petition. (Id.)

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Thus, Petitioner requests that the Court dismiss his Petition without prejudice. (Id.)

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On January 31, 2017, U.S. Magistrate Judge Bernard G. Skomal issued a

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Report and Recommendation (“R&R”) recommending that this Court grant

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Petitioner’s motion for voluntary dismissal. (ECF No. 11.) The magistrate judge

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reasoned that dismissal without prejudice is appropriate under Federal Rule of Civil

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Procedure 41(a)(2). (Id.) No objections have been filed to the R&R.

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The Court reviews de novo those portions of the R&R to which objections are

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made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or

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in part, the findings or recommendations made by the magistrate judge.” Id. But

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“[t]he statute makes it clear that the district judge must review the magistrate judge’s

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findings and recommendations de novo if objection is made, but not otherwise.”

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see

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also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding

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that where no objections were filed, the district court had no obligation to review the

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magistrate judge’s report). “Neither the Constitution nor the statute requires a district

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judge to review, de novo, findings and recommendations that the parties themselves

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accept as correct.” Id. “When no objections are filed, the de novo review is waived.”

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Marshall v. Astrue, No. 08cv1735, 2010 WL 841252, at *1 (S.D. Cal. Mar. 10, 2010)

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(Lorenz, J.) (adopting report in its entirety without review because neither party filed

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objections to the report despite the opportunity to do so).

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In this case, no objections have been filed, and neither party has requested

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additional time to do so. Consequently, the Court may adopt the R&R on that basis

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alone. See Reyna-Tapia, 328 F.3d at 1121. Having nonetheless conducted a de novo

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of the R&R, the Court concludes that Judge Skomal’s reasoning is sound.

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Accordingly, the Court hereby APPROVES and ADOPTS the R&R in its entirety

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(ECF No. 11), GRANTS Petitioner’s motion for voluntary dismissal (ECF No. 10),
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and TERMINATES AS MOOT Respondent’s motion to dismiss (ECF No. 7).

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Accordingly, the Court DISMISSES WITHOUT PREJUDICE this action. The

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Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.

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DATED: February 17, 2017

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16cv2041