McCraw v. McDowell

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION; AND ORDER OF DISMISSAL. Having considered the R&R 12 , the Court finds it to be correct, and adopts it. Respondent's motion to dismiss 8 is granted and the petition is dismissed without prejudice to its claims being raised in a civil rights complaint under 42 U.S.C. 1983 or another appropriate action. Signed by Judge Larry Alan Burns on 1/10/2018.(All non-registered users served via U.S. Mail Service)(jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHARLES J. MCCRAW,

Case No.: 17cv1106-LAB (BLM)
Petitioner,

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v.

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N. MCDOWELL, Warden,

ORDER ADOPTING REPORT
AND RECOMMENDATION; AND
ORDER OF DISMISSAL

Respondent.

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Petitioner Charles McCraw filed a petition for writ of habeas corpus under 28

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U.S.C. ' 2254. The matter was referred to Magistrate Judge Barbara Major

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pursuant to 28 U.S.C. ' 636. Respondent then moved to dismiss the petition on

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the grounds that the claims McCraw was raising were not cognizable on habeas

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review.

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recommendation (the “R&R”), recommending that the motion to dismiss be granted

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and the petition dismissed without prejudiced to the claims being raised in a

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petition under 42 U.S.C. ' 1983.

On December 1, 2017, Judge Major issued her report and

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Objections to the R&R were due December 29, 2017 and the R&R warned

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the parties that failure to file objections within the specified time may waive the

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right to raise them later on appeal. Since then, McCraw has filed no objections,

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nor sought additional time in which to do so.
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17cv1106-LAB (BLM)

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A district court has jurisdiction to review a Magistrate Judge's report and

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recommendation on dispositive matters. Fed. R. Civ. P. 72(b). “The district judge

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must determine de novo any part of the magistrate judge's disposition that has

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been properly objected to.” Id. “A judge of the court shall make a de novo

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determination of those portions of the report or specified proposed findings or

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recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). “A judge of

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the court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” Id. The Court reviews de novo

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those portions of the R&R to which specific written objection is made. United States

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v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc). “The statute makes

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it clear that the district judge must review the magistrate judge's findings and

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

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Having considered the R&R, the Court finds it to be correct, and ADOPTS it.

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Respondent’s motion to dismiss is GRANTED and the petition is DISMISSED

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without prejudice to its claims being raised in a civil rights complaint under 42

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U.S.C. ' 1983 or another appropriate action.

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IT IS SO ORDERED.
Dated: January 10, 2018

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Hon. Larry Alan Burns
United States District Judge

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17cv1106-LAB (BLM)