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