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Maxwell v. Neotti

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 24, 2010

CLIFTON WAYNE MAXWELL, PETITIONER,
v.
GEORGE A. NEOTTI, WARDEN. RESPONDENT.

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

ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION TO DISMISS FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS [doc. #15]

Petitioner Clifton Wayne Maxwell, a state prisoner, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 and later filed an amended petition. The case was referred to United States Magistrate Judge Barbara L. Major 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 the granting of respondent's motion to dismiss the first amended petition because the amended petition is moot. .

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).

Objections to the Report were to be filed by August 5, 2010. To date, neither party has filed an objection to the Report. Accordingly, IT IS ORDERED adopting the Report and Recommendation in its entirety and granting respondent's motion to dismiss the first amended petition for writ of habeas corpus.

IT IS SO ORDERED.

BARBARA L. MAJOR UNITED STATES MAGISTRATE JUDGE

20100824

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