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