UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
July 29, 2011
DOMINGO URIBE, JR.; EDMUND G. BROWN, JR.,
The opinion of the court was delivered by: Honorable Janis L. SammartinoUnited States District Judge
ORDER: (1) ADOPTING REPORT AND RECOMMENDATION; (2) DENYING RESPONDENT'S MOTION TO DISMISS; AND (3) DISMISSING UNEXHAUSTED CLAIM (ECF Nos. 9, 14)
Presently before the Court is Respondent Domingo Uribe, Jr.'s motion to dismiss Petitioner Adam Limbrick's petition for writ of habeas corpus. (ECF No. 9.) Also before the Court is Magistrate Judge Mitchell D. Dembin's report and recommendation advising the Court to deny Respondent's motion. (R&R, ECF No. 14.)
Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district court's duties in connection with a magistrate judge's report and recommendation. The district 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. Raddatz, 447 U.S. 667, 673--76 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely objection, the Court "need only satisfy itself that there is no clear error on the face of the record in order to accept the report and recommendation." Fed. R. Civ. P. 72 advisory committee's note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)); see also United States v. ReynaTapia, 328 F.3d 1114, 1121 (9th Cir. 2003)("[T]he district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.")
Here, Respondent failed to timely object to Magistrate Judge Dembin's report and recommendation. See Fed. R. Civ. P 72(b) ("Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations."); R&R (filed June 29, 2011). Having reviewed the report and recommendation, the Court finds that it is thorough, well reasoned, and contains no clear error. Accordingly, the Court (1) ADOPTS Magistrate Judge Dembin's report and recommendation and (2) DENIES Respondent's motion.
In addition, Magistrate Judge Dembin gave Petitioner until July 8, 2011 to object to the dismissal with prejudice of the unexhausted claim contained in his petition. (R&R 5; see id. at 3 ("Petitioner concedes in his Opposition to Respondent's Motion to Dismiss that his Petition contains an unexhausted claim.").) To date, he has not taken any action on the unexhausted claim. Accordingly, Petitioner's unexhausted claim is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
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