Maas v. Rackley
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION. Court approves and adopts 13 Report and Recommendation in its entirety. Court grants without leave to amend Respondent's 8 Motion to Dismiss. Signed by Judge Cynthia Bashant on 7/19/2018. (All non-registered users served via U.S. Mail Service) (jah)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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MICHAEL E. MAAS,
Petitioner,
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Case No. 3:17-cv-1547-BAS(JMA)
ORDER:
v.
(1) APPROVING AND ADOPTING
REPORT AND
RECOMMENDATION IN ITS
ENTIRETY (ECF No. 13); AND
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RONALD RACKLEY,
Respondent.
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(2) GRANTING MOTION TO
DISMISS (ECF No. 8)
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Petitioner Michael E. Maas, a state prisoner, proceeding pro se, has filed a Petition
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for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his 1998 convictions
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in San Diego Superior Court Case Nos. SCE185960 and SCE188460 for grand theft,
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unlawful taking of a vehicle, burglary and forgery. (ECF No. 1.) Petitioner initially filed
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this action pursuant to 28 U.S.C. § 2241, but he is a state prisoner attacking the validity of
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a California State court conviction and sentence and cannot proceed under section 2241.
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Instead, the Court construed this action as one brought pursuant to 28 U.S.C. § 2254. (See
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ECF No. 3). See White v. Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 2004) (holding that
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section 2254 is the proper jurisdictional basis for a habeas petition brought by an individual
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“in custody pursuant to a state court judgment”).
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On November 28, 2017, Respondent Ronald Rackley filed a motion to dismiss.
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(ECF No. 8.) On June 19, 2018, Magistrate Judge Jan M. Adler considered this motion
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and issued a Report & Recommendation (“R&R”). (ECF No. 13.) Judge Adler
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recommends that this Court grant the motion to dismiss. (Id.) The magistrate judge ordered
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that any objections to the R&R be filed no later than July 6, 2018, and that any replies to
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the objections be filed no later than July 20, 2018. (R&R at 9.) To date, Petitioner has not
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filed any objections or requests for additional time to do so.
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The Court reviews de novo those portions of the R&R to which objections are made.
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28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part, the
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findings or recommendations made by the magistrate judge.” Id. But “[t]he 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.” United States v. Reyna-
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Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also Schmidt v. Johnstone, 263
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F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were filed,
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the district court had no obligation to review the magistrate judge’s report). “Neither the
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Constitution nor the statute requires a district judge to review, de novo, findings and
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recommendations that the parties themselves accept as correct.” Id. “When no objections
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are filed, the de novo review is waived.” Marshall v. Astrue, No. 08-cv-1735, 2010 WL
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841252, at *1 (S.D. Cal. Mar. 10, 2010) (Lorenz, J.) (adopting report in its entirety without
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review because neither party filed objections to the report despite the opportunity to do
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so).
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In this case, the deadline for filing objections was July 6, 2018. However, Petitioner
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has not filed any objections or requests for additional time to do so. Consequently, the
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Court may adopt the R&R on that basis alone. See Reyna-Tapia, 328 F.3d at 1121. Having
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nonetheless reviewed the R&R, the Court agrees with the R&R’s recommendations.
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Additionally, though Magistrate Judge Adler did not state whether to grant Respondent’s
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request to dismiss with or without leave to amend, the Court finds that granting the request
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without leave to amend is appropriate. Magistrate Judge Adler recommended granting the
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motion to dismiss based on three incurable deficiencies: (1) the petition was successive; 1
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(2) certain claims were barred by Lackawanna County District Attorney v. Coss, 532 U.S.
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394 (2001); and (2) the petition was untimely. (R&R at 5-7.) Considering these grounds
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for dismissal, granting Petitioner leave to amend would be futile.
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Accordingly, the Court hereby approves and ADOPTS the R&R in its entirety (ECF
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No. 13). The Court therefore GRANTS WITHOUT LEAVE TO AMEND Respondent’s
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motion to dismiss. (ECF No. 8.)
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IT IS SO ORDERED.
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DATED: July 19, 2018
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Magistrate Judge Adler found that the Court is barred from considering a
successive petition, absent an order from the Ninth Circuit authorizing the Court to
consider a successive petition. (R&R at 5.) Judge Adler also found that “there is no
indication that the Ninth Circuit Court of Appeals has granted Petitioner leave to file a
successive petition.” (Id.)
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