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Wright v. Taylor

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 14, 2007

CALVIN WRIGHT PETITIONER,
v.
DON TAYLOR, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

This is a Petition for Writ of Habeas Corpus. Respondent has moved to dismiss the Petition on the grounds of non-exhaustion of state remedies On July 9, 2007, Magistrate Judge Louisa S. Porter issued a Report and Recommendation recommending that the motion to dismiss be denied. No objections have been filed. For the reasons stated below, the Court adopts the well-reasoned Report and Recommendation of the Magistrate Judge, denies Respondent's Motion to Dismiss and directs Respondent to file an Answer and show cause why the writ should not be granted.

A district judge "may accept, reject, or modify the recommended decision" of a Magistrate Judge on a dispositive matter. F.R.C.P. 72(b); see also 28 U.S.C. §636(b)(1). Moreover, "the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made." Id. "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....Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), cert denied, 157 L.Ed.2d 182 (2003)(emphasis in original).

In the Report and Recommendation, the Magistrate Judge correctly considered the Petitioner's efforts to exhaust his state remedies and determined that all of the issues were exhausted. This Court adopts in full the Report and Recommendation.

Respondent's Motion to Dismiss is Denied. Respondent is directed to file an Answer and shoe cause why the writ should not be granted and to do so no later than October 22, 2007.

IT IS SO ORDERED.

20070914

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