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McCluney v. Beard

United States District Court, S.D. California

March 17, 2015

JERRY WILLIAM McCLUNEY, Petitioner,
v.
JEFFREY BEARD, Secretary, Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING MOTION FOR STAY AND ABEYANCE [Docket Nos. 16, 22]

ROGER T. BENITEZ, District Judge.

Petitioner Jerry William McCluney, a state prisoner proceeding pro se, commenced this action with the filing of a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 asserting a single claim. (Docket No. 1.) On September 19, 2014, Petitioner filed a Motion for Stay and Abeyance. (Docket No. 16.) On October 3, 2014, Respondent filed an Opposition to the Motion and on October 30, 2014 Petitioner filed a Reply. (Docket Nos. 18, 20.) On January 23, 2015, Magistrate Judge David H. Bartick issued a thoughtful and thorough Report and Recommendation recommending that the Motion for Stay and Abeyance be denied. (Docket No. 22). Objections to the Report and Recommendation were due by February 13, 2015. ( Id. ) No objections have been filed. For the reasons that follow, the Report and Recommendation is ADOPTED.

A district judge "may accept, reject, or modify the recommended disposition" of a magistrate judge on a dispositive matter. Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). "[T]he district judge must determine de novo any part of the [report and recommendation] that has been properly objected to." Fed.R.Civ.P. 72(b)(3). However, "[t]he statute 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." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Reyna-Tapia, 328 F.3d at 1121.

In the absence of any objections, the Court fully ADOPTS Judge Bartick's Report and Recommendation. The Motion for Stay and Abeyance is DENIED.

IT IS SO ORDERED.


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