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Jawwaad M. Hasan v. Matthew

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 22, 2011

JAWWAAD M. HASAN,
PETITIONER,
v.
MATTHEW CATES,

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

ORDER:

(1) ADOPTING REPORT AND

(2) GRANTING RESPONDENT'S MOTION TO DISMISS [DOC. 13], AND

(3) DENYING PETITIONER'S MOTION FOR APPOINTMENT EVIDENTIARY HEARING AS MOOT [DOC. 14]

On July 6, 2010, Petitioner Jawwaad M. Hasan, a state prisoner proceeding pro se and in forma pauperis, filed this Petition for Writ of Habeas Corpus under 42 U.S.C. § 2254 ("Petition"), challenging his conviction and sentence in San Diego Superior Court. On October 22, Respondent Matthew Cates filed a motion to dismiss the Petition. (Doc. 13.) On November 17, 2010, Petitioner filed a motion for appointment of counsel and evidentiary hearing. (Doc. 14.) Thereafter, Petitioner filed his Respondent. OF COUNSEL AND opposition to Respondent's motion, but Respondent did not file a reply. On May 31, 2011, United States Magistrate Judge Bernard G. Skomal issued a Report and Recommendation ("Report") recommending that this Court grant Respondent's motion to dismiss, and deny Petitioner's motion for appointment of counsel and evidentiary hearing as moot.

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. Ariz. 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) (citing Renya-Tapia, 328 F.3d at 1121) ("Of course, de novo review of a R & R is only required when an objection is made to the R & R." (emphasis added)); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopting report in its entirety without review because neither party filed objections to the report despite the opportunity to do so); see also Nichols v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.).

Here, the Report ordered that any objection to the Report is to be filed by June 21, 2011, and any reply is to be filed by July 12, 2011. To date, neither party has filed an objection or made a request for additional time to do so. Therefore, the Court accepts Judge Skomal's recommendation, and ADOPTS the Report in its entirety (Doc. 19).

For the reasons stated in the Report, which is incorporated herein by reference, the Court GRANTS Respondent's motion to dismiss the Petition (Doc. 13), and DENIES AS MOOT Petitioner's motion for appointment of counsel and evidentiary hearing (Doc. 14).

IT IS SO ORDERED.

20110622

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