Johnson v. Allison

Opinion

DAVID LEONARD JOHNSON, Case No.: 19cv1673-LAB (KSC)

Petitioner, ORDER ADOPTING REPORT AND v. RECOMMENDATION; AND

MARION SPEARMAN, Warden, ORDER OF DISMISSAL Respondent. Petitioner David Johnson, a prisoner in state custody, filed his petition for writ of habeas corpus, which Respondent then moved to dismiss. Johnson then filed a motion requesting stay and abeyance. These motions were referred to Magistrate Judge Karen Crawford for a report and recommendation. On April 7, Judge Crawford issued her report and recommendation (the “R&R”). Any objections were required to be filed by May 8, 2020, and any reply to the objections no later than May 22. The Court on April 8 ordered the parties to comply with deadlines, and to continue litigating the case. The case was not stayed, and if the parties needed more time to comply with deadlines, they were directed to file an ex parte motion explaining why they needed more time. The Court also reminded Johnson that failure to timely object may waive the right to raise objections on appeal. The motion for stay and abeyance, dated January 17, is the last document Johnson filed or attempted to file. After that, all mail sent to him was returned as undeliverable. It unknown when Johnson moved, but because the first notice of returned mail was filed February 18, it must have been some time before that. Johnson has not updated his address as required by Civil Local Rule 83.11(b). Because of the timing, it is apparent his failure to update his address is unrelated to the COVID-19 pandemic. A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). “The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Id. “A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). This section does not require some lesser review by the district court when no objections /are filed. Thomas vy. Arn, 474 U.S. 140, 149-50 (1985). The “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 the original). The statutory provision does not require that the district court conduct some lesser review when no objections are filed. Thomas, 474 U.S. at 149-50 (“It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions under a de novo or any other standard when neither party objects to those findings’). The Court has reviewed the unobjected-to R&R, finds it to be correct, and ADOPTS The petition is DISMISSED WITHOUT PREJUDICE to its being refiled after final judgment is entered in state proceedings, after Johnson has exhausted other claims he /intends to include; and prior to the one-year statute of limitations. (See R&R at 10:24— 11:2.) The motion for stay and abeyance is DENIED. Dated: June 8, 2020 ( dt A “f Zuni Hon. Larry Alan Burns Chief United States District Judge