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Bernard Flores v. George Neotti

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 5, 2012

BERNARD FLORES,
PETITIONER,
v.
GEORGE NEOTTI, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION [Doc. No. 16]; (2) GRANTING MOTION TO DISMISS WITH PREJUDICE; AND (3) DENYING CERTIFICATE OF APPEALABILITY

Before the Court is Bernard Flores's Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court is Respondent's motion to dismiss the petition, filed March 25, 2011. (Doc. No. 14.) Petitioner filed an opposition on April 21, 2011. (Doc. No. 15.) The Court referred the matter to Magistrate Judge Bernard G. Skomal, who issued a Report and Recommendation ("R&R") recommending the Court dismiss the Petition on the merits and decline to issue a certificate of appealability. (R&R, Doc. No. 16.) Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district judge's duties in connection with a magistrate judge's report and recommendation. The district judge 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 finding 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).

However, in the absence of timely objection(s), the Court "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72(b), Advisory Committee Notes (1983); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

Neither party has timely filed objections to Magistrate Judge Skomal's Report and Recommen- dation. (See Order of September 14, 2011, Granting Petitioner Extension of Time to File Objections, Doc. No. 19, (objections due by September 28, 2011).) Having reviewed the report and recommenda- tion, the Court finds that Magistrate Judge Skomal's Report and Recommendation is thorough, well reasoned, and contains no clear error. Accordingly, the Court hereby: (1) ADOPTS Magistrate Judge Skomal's Report and Recommendation; (2) GRANTS Defendant's Motion to Dismiss with Prejudice, [Doc. No. 14], and (3) DECLINES to issue a certificate of appealability.*fn1

IT IS SO ORDERED.


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