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McElroy v. Castro

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 10, 2008

FELIX MCELROY, PETITIONER,
v.
ROY C. CASTRO, ET AL., RESPONDENTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER ADOPTING THE REPORT AND RECOMMENDATION; GRANTING LEAVE TO AMEND THE PETITION; DENYING MOTION TO STAY; DENYING MOTION TO DISMISS AS MOOT; AND SETTING BRIEFING SCHEDULE [doc. # 23, 30, 32]

Petitioner Felix McElroy filed the above-captioned habeas corpus action on June 2, 2006. Respondents filed an answer to the petition on September 28, 2006. Thereafter, petitioner filed a first amended petition on May 8, 2007 to which respondents filed a motion to dismiss [doc. #23]. While the motion to dismiss was pending, petitioner sought leave to file a second amended petition [doc. #30] and a motion to stay [doc. #32].

Magistrate Judge Anthony J. Battaglia entered a Report and Recommendation ("Report") on December 11, 2007, under 28 U.S.C. § 636(b)(1), recommending petitioner's motion for leave to file a second amended petition be granted; petitioner's motion for stay be denied; and respondents' motion to dismiss the first amended petition be denied as moot. Neither party filed objections to the Report within the time provided in the Report.

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. Under this statute, "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- , 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 124 S.Ct. 238 (2003); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia's holding to a habeas corpus proceeding).

Because the parties have not filed objections to the Report, and the magistrate judge has carefully and fully considered the arguments of the parties, the Court will adopt the Report.

Based on the foregoing,

1. The Report and Recommendation is ADOPTED;

2. Petitioner's motion to stay is DENIED;

3. Petitioner's motion for leave to amend the petition is GRANTED. Petitioner's Second Amended Complaint filed September 24, 2007 [doc. #28] is deemed the operative petition*fn1 ;

4. Defendant's motion to dismiss the first amended petition is DENIED AS MOOT;

5. Respondents shall file and serve on petitioner a return to the second amended petition within twenty days of the filing of this Order.

6. Petitioner shall file a traverse within twenty days of service of respondents' return. Failure to timely file a traverse or to request an extension of time in which to do so demonstrating good cause, will result in the magistrate judge issuing a Report and Recommendation based upon the second amended petition and answer thereto.

IT IS SO ORDERED.


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