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United States District Court, S.D. California

November 9, 2005.

JEANNE S. WOODFORD, Director, Respondent.

The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed a motion to dismiss the petition on the grounds that it is a impermissible successive petition. Petitioner did not file an opposition to respondent's motion. Pursuant to 28 U.S.C. § 636(b)(1), the Honorable Anthony J. Battaglia, United States Magistrate Judge, submitted a report and recommendation ("Report") to this Court recommending the instant petition be dismissed without prejudice. Objections to the Report were due by October 24, 2005, but neither party filed objections. After careful consideration of the pleadings and relevant exhibits submitted by the parties, and for the reasons set forth below, this Court ADOPTS the magistrate judge's Report in its entirety and DISMISSES the instant petition without prejudice. BACKGROUND

The instant petition challenges petitioner's February 2, 1999 conviction in San Diego County Superior Court Case No. SCD 138543 for the unlawful taking of a vehicle. Petitioner previously challenged the same conviction in a habeas petition, filed on June 6, 2002, which was denied on the merits on April 23, 2004. See Stewart v. Lamarque, Case No. 02cv1104 H(BEN). Petitioner filed another habeas petition, raising the same issues as those contained in his 2002 petition, on July 28, 2004, which was dismissed on August 5, 2004. See Stewart v. Caden, Warden, Case No. 04cv1527 J(WMc).

  The instant petition, challenging the same conviction as the previous petitions, was filed on March 7, 2005. Respondent filed his motion to dismiss on May 10, 2005. No opposition was filed by petitioner. Magistrate Judge Battaglia issued a report and recommendation on October 3, 2005, recommending the instant petition be dismissed. No objections were filed within the time frame allowed for filing such objections.


  1. Legal Standard

  The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." Id. When no objections are filed, the Court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law. Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). 2. Analysis

  The Court received no objections to the Report and no request for an extension of time in which to file any objections. As such, the Court assumes the correctness of the magistrate judge's factual findings and adopts them in full. The Court has conducted a de novo review, independently reviewing the Report and all relevant papers submitted by both parties, and finds that the Report provides a cogent analysis of the issues presented in respondent's motion to dismiss. This Court's de novo review of the record reveals that the Report's analysis of the applicable law is correct. Therefore, this Court concurs with the magistrate judge's conclusion that the instant petition is an impermissible successive petition which must be dismissed without prejudice to petitioner seeking leave from the Court of Appeals to file a successive petition in this Court.


  For the reasons set forth above, IT IS HEREBY ORDERED that:

1. The findings and conclusions of the magistrate judge presented in the Report and Recommendation are ADOPTED in their entirety;
2. Respondent's motion to dismiss is GRANTED; and
3. The instant petition is DISMISSED without prejudice.

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