Brown v. Montgomery et al

Filing 15

ORDER Adopting Report and Recommendation [Doc. No. 14 ]. Granting Motion to Dismiss [Doc. No. 10 ] and Dismissing Petition. Signed by Judge Cathy Ann Bencivengo on 11/19/2020. (All non-registered users served via U.S. Mail Service)(anh) (dsn)

Case 3:19-cv-02021-CAB-WVG Document 15 Filed 11/19/20 PageID.821 Page 1 of 2

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MICHAEL BROWN,

Case No.: 19cv2021-CAB-WVG
Plaintiff,

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v.

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ORDER ADOPTING REPORT AND
RECOMMENDATION[Doc. No. 14],
GRANTING MOTION TO DISMISS
[Doc. No. 10], AND DISMISSING
PETITION

W.L. MONTGOMERY, Warden, et al.,
Defendant.

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On October 21, 2019, Petitioner Michael Brown (“Petitioner”), a state prisoner

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proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254, [Doc. No. 1.] On April 6, 2020, Respondent filed a motion

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to dismiss the petition and lodged the state court record. [Doc. Nos. 10, 11.] Petitioner did

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not file an opposition.

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On August 13, 2020, Magistrate Judge William V. Gallo issued a Report and

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Recommendation (“Report”), recommending that the Court GRANT Respondent’s

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motion to dismiss. [Doc. No. 14.] The Report also ordered that any objections were to be

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filed by October 30, 2020. [Report at 12.] To date, no objection has been filed, nor has

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there been a request for additional time in which to file an objection.

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A district court’s duties concerning a magistrate judge’s report and
recommendation and a respondent’s objections thereto are set forth in Rule 72(b) of the
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19cv2021-CAB-WVG

Case 3:19-cv-02021-CAB-WVG Document 15 Filed 11/19/20 PageID.822 Page 2 of 2

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Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are

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filed, the district court is not required to review the magistrate judge’s report and

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recommendation. The Court reviews de novo those portions of the Report and

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Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may

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“accept, reject, or modify, in whole or in part, the findings or recommendations made by

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the magistrate judge.” Id. However, “[t]he statute makes it clear that the district judge

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must review the magistrate judge's findings and recommendations de novo if objection is

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made, but not otherwise.” United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th

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Cir.2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute

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requires a district judge to review, de novo, findings and recommendations that the

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parties themselves accept as correct.” Id.

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Here, neither party has timely filed objections to the Report. Having reviewed it,

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the Court finds that it is thorough, well-reasoned, and contains no clear error.

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Accordingly, the Court HEREBY ADOPTS Magistrate Judge Gallo’s Report and

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Recommendation [Doc. No. 14] in its entirety. For the reasons stated in the Report,

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which is incorporated herein by reference, the Court GRANTS the motion to dismiss

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[Doc. No. 10] and DISMISSES the Petition WITHOUT LEAVE TO AMEND. [Doc.

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No. 1.]

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Moreover, because the Court does not believe that reasonable jurists would find the

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Court’s assessment of the constitutional claims debatable or wrong it DECLINES to

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issue a Certificate of Appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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IT IS SO ORDERED.
Dated: November 19, 2020

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