Brown v. Montgomery

Opinion

1 2 3 4 5 6 7 10 11 MICHAEL BROWN, Case No.: 19cv2021-CAB-WVG

12 Plaintiff, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION[Doc. No. 14], GRANTING MOTION TO DISMISS 14 W.L. MONTGOMERY, Warden, et al., [Doc. No. 10], AND DISMISSING 15 Defendant. PETITION 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 A district court’s duties concerning a magistrate judge’s report and 28 recommendation and a respondent’s objections thereto are set forth in Rule 72(b) of the 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). 23 ||Dated: November 19, 2020 € Z 24 Hon. Cathy Ann Bencivengo 25 United States District Judge 26 27 28