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Johnson v. Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 31, 2009

PERIECE JOHNSON, PETITIONER,
v.
MATTHEW CATE, SECRETARY OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT.

The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION (DOC. NO. 17.) (2) GRANTING MOTION TO DISMISS (DOC. NO. 11.) (3) DENYING PETITION (DOC. NO. 1)

On September 29, 2008, Petitioner Periece Johnson ("Petitioner"), state prisoner proceeding pro se, filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner challenges his 2005 convictions for selling cocaine base and possessing cocaine base for sale. (Id.)

On March 13, 2009, Respondent filed a motion to dismiss the Petition. (Doc. No. 11.) On April 21, 2009, Petitioner filed an opposition. (Doc. No. 16.)

On April 28, 2009, Magistrate Judge Barbara L. Major issued a Report and Recommendation ("Report"), recommending that the Court grant the motion to dismiss and deny the Petition with prejudice. The Report also ordered that any objections were to be filed by May 20, 2009, and any reply filed by June 10, 2009. To date, no objection has been filed, nor has there been a request for additional time in which to file an objection.

A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(holding that 28 U.S.C. 636(b)(1)(c) "makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise")(emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Arizona 2003) (concluding that where no objections were filed, the District Court had no obligation to review the magistrate judge's Report). This rule of law is well established within the Ninth Circuit and this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)("Of course, de novo review of a R & R is only required when an objection is made to the R & R.")(emphasis added)(citing Renya-Tapia, 328 F.3d 1121); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopted Report without review because neither party filed objections to the Report despite the opportunity to do so, "accordingly, the Court will adopt the Report and Recommendation in its entirety."); see also Nichols v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.).

The Court, therefore, accepts Judge Major's recommendation, and ADOPTS the Report (Doc. No. 17) in its entirety. For the reasons stated in the Report, which is incorporated herein by reference, the Court GRANTS Respondent's motion to dismiss (Doc. No. 11), and DISMISSES the Petition (Doc. No. 1) WITH PREJUDICE.

IT IS SO ORDERED.

20090831

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