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McElroy v. Castro

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 7, 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; DISMISSING THE SECOND AMENDED PETITION WITH PREJUDICE; and DIRECTING ENTRY OF JUDGMENT

Petitioner Felix McElroy filed the above-captioned habeas corpus action on June 2, 2006, and 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 and respondents' motion to dismiss the first amended petition be denied as moot. This Court adopted the Report, petitioner filed a second amended petition and respondents filed a return.

The magistrate judge entered a new Report recommending that the petition be denied with prejudice. 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, the Report and Recommendation is ADOPTED in its entirety; and the petition is DENIED with prejudice. The Clerk of the Court is directed to enter judgment in accordance with this Order.

IT IS SO ORDERED.

20080507

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