The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION;
GRANTING RESPONDENT'S MOTION TO DISMISS; AND DISMISSING PETITION
FOR WRIT OF HABEAS CORPUS
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.
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 ...