UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
December 18, 2008
NATHAN KEVIN TURNER, PLAINTIFF,
JAMES TILTON, SECRETARY, DEFENDANT.
The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION AND (2) GRANTING DEFENDANT'S MOTION TO DISMISS
(Doc. Nos. 14 & 18.)
Presently before the Court are Magistrate Judge Anthony J. Battaglia's Report and Recommendation ("R&R") advising this Court to grant Respondent's motion to dismiss, (Doc. No. 18) and Petitioner's objections. (Doc. No. 25.) For the following reasons, the Court ADOPTS the report and recommendation, GRANTS Respondent's motion to dismiss, and DISMISSES the petition.
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth the duties of the district court in connection with a magistrate judge's report and recommendation. "The district court must 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." 28 U.S.C. 636(b)(1)(c); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980). However, in the absence of timely objection, the Court need "only satisfy itself that there is no clear error on the face of the record." Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).
Petitioner appears to misconstrue the nature of the challenge to his petition, as his objections do not address the substance of the R&R's findings. Instead, the objections discuss at length the claims made in the petition. Thus, the Court finds that Petitioner has not made an objection to any specific portion of the report. Therefore, the Court need only satisfy itself that the R&R is not clearly erroneous. Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (citing Campbell, 501 F.2d at 206). After a full review of the relevant materials, the Court finds that the R&R is not clearly erroneous.
However, even under a de novo review, the R&R is still plainly correct. As Magistrate Judge Battaglia found, Petitioner's claim is barred by 28 U.S.C. § 2244(b)(3). (R&R, at 3--4.) Section 2244(b)(3) reads, in relevant part: "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). A petition is considered successive if it rases claims that could have been raised in the prior petition. See Hill v. Alaska, 297 F.3d 895, 898 (9th Cir. 2002); R&R, at 3--4; see also Felker v. Turpin, 518 U.S. 651, 664 (1996); Babbit v. Woodford, 177 F.3d 744, 747 (9th Cir. 1999). If the relevant court of appeals has not authorized a successive petition, the district court lacks jurisdiction to consider the petition's merits. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001).
As explained in the R&R, Petitioner filed a habeas corpus petition in 1985. (R&R, at 2.) The district court denied this first petition in 1990, and the Ninth Circuit affirmed that decision in 1995. (Id.) All of Petitioner's nine claims could have been raised in his prior petition for habeas corpus. (Id., at 3--4.) Thus, the present action constitutes a successive petition under § 2244. (Id.)
As the R&R correctly concludes, Petitioner must obtain an order from the Ninth Circuit before this Court entertains his petition. (R&R, at 4.) Without evidence of an order under § 2244(b)(3), this Court cannot entertain Mr. Turner's petition. Cooper, 274 F.3d at 1274. Therefore, the Court must grant Respondent's motion to dismss.
For these reasons, the Court ADOPTS the R&R in full. Respondents motion to dismiss is hereby GRANTED and the petition is DISMISSED.
IT IS SO ORDERED.
© 1992-2008 VersusLaw Inc.