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Alvarez v. Smelesky

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 24, 2009

ANTHONY ALVAREZ, PETITIONER,
v.
MICHAEL SMELESKY, RESPONDENT.

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

ORDER ADOPTING REPORT AND RECOMMENDATIONS and DISMISSING WITH PREJUDICE PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Anthony Alvarez, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. The case was referred to United States Magistrate Judge Cathy Ann Bencivengo for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). In an Order filed January 9, 2009, the Court dismissed the petition for failure to satisfy the filing fee requirement and to use a court-approved form. Plaintiff previously filed a petition for writ of habeas corpus, 06cv2112 WQH (JMA). Therefore, he was required to file a first amended petition stating that he is now challenging a different San Diego Superior Court conviction or a first amended petition with an Order from the Ninth Circuit Court of Appeals stating that petitioner may file a successive petition with this Court. Plaintiff was also ordered to either pay the $5.00 filing fee or provide adequate proof of his inability to pay the fee. (See Order filed January 9, 2009 [doc. #8].) Although petitioner filed a motion for leave to proceed in forma pauperis, which was granted, he did not file a first amended petition.

On July 15, 2009, 2009, the Magistrate Judge issued a Report and Recommendation ("Report"), recommending that the petition be dismiss with prejudice for failure to comply with the Court's previous order and because it is a second or successive petition. Any objections were to be filed no later than August 17, 2009.

In reviewing a magistrate judge's report and recommendation, 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." 28 U.S.C. § 636(b)(1). 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-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc) (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review). Petitioner did not object to the Report or seek additional time in which to file objections to the Report.

Because no objections have been filed, the Court adopts the Report in its entirety and dismissed the petition with prejudice.

IT IS SO ORDERED.

20090824

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