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McDonald v. Haaws

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 8, 2010

JOSEPH HILTON MCDONALD, PETITIONER,
v.
E.B. HAAWS, RESPONDENT.

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

ORDER ADOPTING REPORT AND RECOMMENDATION; DENYING MOTION TO DISMISS SECOND AMENDED PETITION [doc. #24]; and REQUIRING RESPONSE

Petitioner Joseph Hilton McDonald, a state prisoner, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The case was referred to United States Magistrate Judge Peter C. Lewis for a report and recommendation ("Report") pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). In the Report, the magistrate judge recommended denial of respondent's motion to dismiss the second amended petition. Neither party filed an objection to the Report.

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. 2003) (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).

As noted above, neither petitioner nor respondent objected to any portion of the Report. Having reviewed the Report, the Court finds that dismissal of the second amended petitioner on exhaustion grounds is not warranted. Accordingly, IT IS ORDERED adopting the Report and Recommendation in its entirety. IT IS FURTHER ORDERED denying respondent's motion to dismiss the second amended petition. IT IS FURTHER ORDERED that respondent shall answer the second amended petition within 30 days of the filing of this Order.

IT IS SO ORDERED.

HON. PETER C. LEWIS UNITED STATES MAGISTRATE JUDGE

20100208

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