(HC) Deary-Smith v. Bonta

Opinion

RASHID DESHAWN DEARY-SMITH, No. 2:20-cv-00572 KJM AC Petitioner, v. ORDER STUART SHERMAN, et al., Respondents. Petitioner, a former state prisoner proceeding through retained counsel, filed an application for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On April 2, 2024, the magistrate judge filed findings and recommendations, which were served on petitioner and which contained notice to petitioner that any objections to the findings and recommendations were to be filed within fourteen days. ECF No. 48. Petitioner has not filed objections to the findings and recommendations. The court presumes that any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the magistrate judge are reviewed de novo by both the district court and [the appellate] court ///// ....°). Having reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis. Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations (ECF No. 48) are adopted in full; 2. Petitioner’s motion to dismiss the pending habeas corpus action (ECF No. 47) is construed as a request for voluntary dismissal pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure; 3. So construed, this action is voluntarily dismissed and this case is closed. 4. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253. DATED: August 16, 2024. CHIEF ED STATES DISTRICT JUDGE