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Rodriguez v. Marshall

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 23, 2010

JAVIER ESPINOZA RODRIGUEZ, PETITIONER,
v.
JOHN C. MARSHALL, WARDEN,, RESPONDENT.

The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; [Doc. No. 12] GRANTING RESPONDENT'S MOTION TO DISMISS; [Doc. No. 8] DENYING AND DISMISSING AS MOOT PETITION FOR WRIT OF HABEAS CORPUS [Doc. No. 1]

Petitioner Javier Espinoza Rodriguez, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus [Doc. No. 1] pursuant to 28 U.S.C. § 2254. Respondent filed a motion to dismiss the petition as moot [Doc. No. 8]. Petitioner did not oppose the motion. The matter is currently before the Court for review of the Report and Recommendation issued by United States Magistrate Judge Anthony J. Battaglia recommending that Respondent's motion be granted and the petition be denied and dismissed as moot [Doc. No. 12].

Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), the 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 [judge]." 28 U.S.C. § 636(b) (1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). When no objections are filed, as is the case here, a district court may assume the correctness of the magistrate judge's factual findings and decide the motion on the applicable law. Johnson v. Nelson, 142 F.Supp.2d 1215, 1217 (S.D.Cal. 2001) (citing Campbell v. United States District Court, 501 F.2d 196, 206 (9th Cir. 1989)).

The Court concludes that the magistrate judge issued an accurate report and well-reasoned recommendation that the instant petition be denied and dismissed as moot in light of the proceedings recorded in Civil Case No. 08cv1007-H (CAB). Accordingly, IT IS HEREBY ORDERED THAT:

1. The Report and Recommendation is ADOPTED in its entirety.

2. Respondent's Motion to Dismiss is GRANTED.

3. Petitioner's Petition for Writ of Habeas Corpus is DENIED and DISMISSED AS MOOT.

4. The Clerk of Court shall terminate this case and enter judgment in favor of Respondent.

IT IS SO ORDERED.

20101123

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