Maas v. Rackley

Filing 14

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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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 MICHAEL E. MAAS, Petitioner, 14 15 Case No. 3:17-cv-1547-BAS(JMA) ORDER: v. (1) APPROVING AND ADOPTING REPORT AND RECOMMENDATION IN ITS ENTIRETY (ECF No. 13); AND 16 17 18 RONALD RACKLEY, Respondent. 19 (2) GRANTING MOTION TO DISMISS (ECF No. 8) 20 21 Petitioner Michael E. Maas, a state prisoner, proceeding pro se, has filed a Petition 22 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his 1998 convictions 23 in San Diego Superior Court Case Nos. SCE185960 and SCE188460 for grand theft, 24 unlawful taking of a vehicle, burglary and forgery. (ECF No. 1.) Petitioner initially filed 25 this action pursuant to 28 U.S.C. § 2241, but he is a state prisoner attacking the validity of 26 a California State court conviction and sentence and cannot proceed under section 2241. 27 Instead, the Court construed this action as one brought pursuant to 28 U.S.C. § 2254. (See 28 ECF No. 3). See White v. Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 2004) (holding that 1 17cv1547 1 section 2254 is the proper jurisdictional basis for a habeas petition brought by an individual 2 “in custody pursuant to a state court judgment”). 3 On November 28, 2017, Respondent Ronald Rackley filed a motion to dismiss. 4 (ECF No. 8.) On June 19, 2018, Magistrate Judge Jan M. Adler considered this motion 5 and issued a Report & Recommendation (“R&R”). (ECF No. 13.) Judge Adler 6 recommends that this Court grant the motion to dismiss. (Id.) The magistrate judge ordered 7 that any objections to the R&R be filed no later than July 6, 2018, and that any replies to 8 the objections be filed no later than July 20, 2018. (R&R at 9.) To date, Petitioner has not 9 filed any objections or requests for additional time to do so. 10 The Court reviews de novo those portions of the R&R to which objections are made. 11 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part, the 12 findings or recommendations made by the magistrate judge.” Id. But “[t]he statute makes 13 it clear that the district judge must review the magistrate judge’s findings and 14 recommendations de novo if objection is made, but not otherwise.” United States v. Reyna- 15 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also Schmidt v. Johnstone, 263 16 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were filed, 17 the district court had no obligation to review the magistrate judge’s report). “Neither the 18 Constitution nor the statute requires a district judge to review, de novo, findings and 19 recommendations that the parties themselves accept as correct.” Id. “When no objections 20 are filed, the de novo review is waived.” Marshall v. Astrue, No. 08-cv-1735, 2010 WL 21 841252, at *1 (S.D. Cal. Mar. 10, 2010) (Lorenz, J.) (adopting report in its entirety without 22 review because neither party filed objections to the report despite the opportunity to do 23 so). 24 In this case, the deadline for filing objections was July 6, 2018. However, Petitioner 25 has not filed any objections or requests for additional time to do so. Consequently, the 26 Court may adopt the R&R on that basis alone. See Reyna-Tapia, 328 F.3d at 1121. Having 27 nonetheless reviewed the R&R, the Court agrees with the R&R’s recommendations. 28 Additionally, though Magistrate Judge Adler did not state whether to grant Respondent’s 2 17cv1547 1 request to dismiss with or without leave to amend, the Court finds that granting the request 2 without leave to amend is appropriate. Magistrate Judge Adler recommended granting the 3 motion to dismiss based on three incurable deficiencies: (1) the petition was successive; 1 4 (2) certain claims were barred by Lackawanna County District Attorney v. Coss, 532 U.S. 5 394 (2001); and (2) the petition was untimely. (R&R at 5-7.) Considering these grounds 6 for dismissal, granting Petitioner leave to amend would be futile. 7 Accordingly, the Court hereby approves and ADOPTS the R&R in its entirety (ECF 8 No. 13). The Court therefore GRANTS WITHOUT LEAVE TO AMEND Respondent’s 9 motion to dismiss. (ECF No. 8.) 10 IT IS SO ORDERED. 11 12 DATED: July 19, 2018 13 14 15 16 17 18 19 20 21 22 23 24 25 1 26 27 28 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.) 3 17cv1547

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