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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHARLES J. MCCRAW, Case No.: 17cv1106-LAB (BLM) Petitioner, 12 13 v. 14 N. MCDOWELL, Warden, ORDER ADOPTING REPORT AND RECOMMENDATION; AND ORDER OF DISMISSAL Respondent. 15 16 17 Petitioner Charles McCraw filed a petition for writ of habeas corpus under 28 18 U.S.C. ' 2254. The matter was referred to Magistrate Judge Barbara Major 19 pursuant to 28 U.S.C. ' 636. Respondent then moved to dismiss the petition on 20 the grounds that the claims McCraw was raising were not cognizable on habeas 21 review. 22 recommendation (the “R&R”), recommending that the motion to dismiss be granted 23 and the petition dismissed without prejudiced to the claims being raised in a 24 petition under 42 U.S.C. ' 1983. On December 1, 2017, Judge Major issued her report and 25 Objections to the R&R were due December 29, 2017 and the R&R warned 26 the parties that failure to file objections within the specified time may waive the 27 right to raise them later on appeal. Since then, McCraw has filed no objections, 28 nor sought additional time in which to do so. 1 17cv1106-LAB (BLM) 1 A district court has jurisdiction to review a Magistrate Judge's report and 2 recommendation on dispositive matters. Fed. R. Civ. P. 72(b). “The district judge 3 must determine de novo any part of the magistrate judge's disposition that has 4 been properly objected to.” Id. “A judge of the court shall make a de novo 5 determination of those portions of the report or specified proposed findings or 6 recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). “A judge of 7 the court may accept, reject, or modify, in whole or in part, the findings or 8 recommendations made by the magistrate judge.” Id. The Court reviews de novo 9 those portions of the R&R to which specific written objection is made. United States 10 v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc). “The statute makes 11 it clear that the district judge must review the magistrate judge's findings and 12 recommendations de novo if objection is made, but not otherwise.” Id. 13 Having considered the R&R, the Court finds it to be correct, and ADOPTS it. 14 Respondent’s motion to dismiss is GRANTED and the petition is DISMISSED 15 without prejudice to its claims being raised in a civil rights complaint under 42 16 U.S.C. ' 1983 or another appropriate action. 17 18 19 IT IS SO ORDERED. Dated: January 10, 2018 20 21 22 Hon. Larry Alan Burns United States District Judge 23 24 25 26 27 28 2 17cv1106-LAB (BLM)

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