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Harris v. Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 11, 2008

GRADY HARRIS, PETITIONER,
v.
MATTHEW CATE, SECRETARY,*FN1 RESPONDENT.

The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER (1) ADOPTING REPORT AND RECOMMENDATION, (2) DENYING PETITIONER'S MOTION FOR STAY AS MOOT, and (3) GRANTING LEAVE TO FILE AN AMENDED PETITION (Doc. Nos. 13, 16, & 19)

On August 28, 2006, Grady Harris ("petitioner"), at the time proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 setting forth five claims for relief.

On March 14, 2007, Magistrate Judge Jan M. Adler issued a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and FRCP 72(b). (Doc. No. 19.) Magistrate Judge Adler recommended that this Court deny as moot plaintiff's motion to stay the petition because petitioner had already accomplished the purpose of the stay, i.e., the exhaustion of state remedies as to a sixth claim concerning petitioner's entitlement to re-sentencing. Magistrate Judge Adler further recommended that this Court grant plaintiff leave to file an amended petition including the newly exhausted claim. The parties were ordered to file written objections by April 16, 2007, but no objections were ever filed.*fn2

Pursuant to 28 U.S.C. § 636, a district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." "When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

Having reviewed the report and recommendation in the absence of any timely objection, the Court finds that Magistrate Judge Adler did not commit clear error in his well-reasoned analysis. Therefore, the Court ADOPTS IN FULL the report and recommendation. The Court DENIES AS MOOT petitioner's motion to stay the petition and GRANTS petitioner leave to file an amended petition to include the sixth, now-exhausted claim.

IT IS SO ORDERED.


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