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)

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Case 3:19-cv-02021-CAB-WVG Document 15 Filed 11/19/20 PageID.821 Page 1 of 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL BROWN, Case No.: 19cv2021-CAB-WVG Plaintiff, 12 13 v. 14 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. 15 16 17 On October 21, 2019, Petitioner Michael Brown (“Petitioner”), a state prisoner 18 proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus 19 pursuant to 28 U.S.C. § 2254, [Doc. No. 1.] On April 6, 2020, Respondent filed a motion 20 to dismiss the petition and lodged the state court record. [Doc. Nos. 10, 11.] Petitioner did 21 not file an opposition. 22 On August 13, 2020, Magistrate Judge William V. Gallo issued a Report and 23 Recommendation (“Report”), recommending that the Court GRANT Respondent’s 24 motion to dismiss. [Doc. No. 14.] The Report also ordered that any objections were to be 25 filed by October 30, 2020. [Report at 12.] To date, no objection has been filed, nor has 26 there been a request for additional time in which to file an objection. 27 28 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 1 19cv2021-CAB-WVG Case 3:19-cv-02021-CAB-WVG Document 15 Filed 11/19/20 PageID.822 Page 2 of 2 1 Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are 2 filed, the district court is not required to review the magistrate judge’s report and 3 recommendation. The Court reviews de novo those portions of the Report and 4 Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may 5 “accept, reject, or modify, in whole or in part, the findings or recommendations made by 6 the magistrate judge.” Id. However, “[t]he statute makes it clear that the district judge 7 must review the magistrate judge's findings and recommendations de novo if objection is 8 made, but not otherwise.” United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th 9 Cir.2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute 10 requires a district judge to review, de novo, findings and recommendations that the 11 parties themselves accept as correct.” Id. 12 Here, neither party has timely filed objections to the Report. Having reviewed it, 13 the Court finds that it is thorough, well-reasoned, and contains no clear error. 14 Accordingly, the Court HEREBY ADOPTS Magistrate Judge Gallo’s Report and 15 Recommendation [Doc. No. 14] in its entirety. For the reasons stated in the Report, 16 which is incorporated herein by reference, the Court GRANTS the motion to dismiss 17 [Doc. No. 10] and DISMISSES the Petition WITHOUT LEAVE TO AMEND. [Doc. 18 No. 1.] 19 Moreover, because the Court does not believe that reasonable jurists would find the 20 Court’s assessment of the constitutional claims debatable or wrong it DECLINES to 21 issue a Certificate of Appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 22 23 IT IS SO ORDERED. Dated: November 19, 2020 24 25 26 27 28 2 19cv2021-CAB-WVG

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