UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
November 27, 2012
F. GONZALEZ, WARDEN ET AL., RESPONDENTS.
The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION, WITHOUT PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY DISMISSING PETITION
On June 14, 2011, Petitioner Jaime Acosta, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. Section 2254, seeking relief from a restitution fine imposed in connection with his murder conviction. (Acosta v. Gonzalez, 11cv1313-DMS (BGS).) Because Petitioner was not challenging the fact or duration of his confinement and did not meet the in custody requirement of section 2254, the petition was dismissed for lack of jurisdiction. See Bailey v. Hill, 599 F.3d 976 (9th Cir. 2010). On November 9, 2011, Petitioner filed a petition under 28 U.S.C. Section 2241seeking relief from the same restitution fine. The petition was referred to United States Magistrate Judge Bernard G. Skomal for a report and recommendation pursuant to 28 U.S.C. Section 636(b)(1)(B) and Civil Local Rule 72.1(d). On August 23, 2012, the Magistrate Judge issued a Report and Recommendation recommending to dismiss the pending petition as duplicative of the previously-filed petition.
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). Petitioner objects to the Report and Recommendation.
The newly filed petition is dismissed because it merely repeats previously litigated and decided claims. See Cato v. United States, 70 F.3d 1104, 1105 n.2 (9th Cir. 1995). Alternatively, it is dismissed for the reasons stated in the order filed February 22, 2012 dismissing the previously filed petition.
Accordingly, Petitioner's objections are OVERRULED and the Report and Recommendation is ADOPTED. The petition is DISMISSED WITHOUT PREJUDICE. Certificate of appealability is DENIED.
IT IS SO ORDERED.
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