Crosby v. Ives

          ORDER OVERRULING PETITIONER'S OBJECTIONS; ADOPTING THE AMENDED REPORT & RECOMMENDATION; DISMISSING HABEAS PETITION WITHOUT PREJUDICE; DIRECTING ENTRY OF SEPARATE JUDGMENT; TERMINATING AND CLOSING THE CASE (JS-6)

          VALERIE BAKER FAIRBANK, SENIOR UNITED STATES DISTRICT JUDGE

         Pursuant to 28 U.S.C. § 636(b)(1), the Court has reviewed the Petition for Writ of Habeas Corpus by a Person in Federal Custody Pursuant to 28 U.S.C. section 2241 ("petition") (CM/ECF Document ("Doc") 1), the respondent warden's answer and accompanying memorandum (Doc 6), petitioner's traverse (Doc 12), the original Report and Recommendation ("R&R") issued by the United States Magistrate Judge pursuant to Fed.R.Civ.P. 72(b)(1) and 28 U.S.C. § 636(b)(1)(B) on February 12, 2016 (Doc 14), petitioner's timely^[1] objections to the original R&R (Doc 16), the Amended Report and Recommendation issued on May 23, 2016 (Doc 17), petitioner's timely objections to the Amended R&R (Doc 20), and the applicable law.

         "Federal Rule of Civil Procedure 72(b)(2) gave respondent a right to respond to the objections, but the time to do so has elapsed and respondent has filed neither a response nor a request for an extension of time. Accordingly, the Court proceeds to the merits without waiting further." Ruelas v. Muniz, No. SA CV 14-01761, 2016 WL 540769, *1 (C.D. Cal. Feb. 9, 2016) (Fairbank, J.). "As required by Fed.R.Civ.P. 72(b)(3), the Court has engaged in de novo review of the portions of the R&R to which petitioner has specifically objected and finds no defect of law, fact, or logic in the . . . R&R." Rael v. Foulk, No. LA CV 14-02987 Doc. 47, 2015 WL 4111295, *1 (C.D. Cal. July 7, 2015) (Fairbank, J.), COA denied, No. LA CV 14-02987 Doc. 53, Appeal No. 15-56205 (9th Cir. Feb. 18, 2016). Accordingly, the Court will accept and implement the Magistrate Judge's findings and recommendations.

         ORDER

         Petitioner's objections to the Amended Report and Recommendation are OVERRULED. The Amended Report and Recommendation is ADOPTED.

         The petition for a writ of habeas corpus is DISMISSED without prejudice for lack of subject-matter jurisdiction.

         Petitioner does not need to obtain a certificate of appealability from this Court or from the United States Court of Appeals for the Ninth Circuit in order to appeal today's Order.^[2]

         Judgment will be entered consistent with this order. "As required by Fed.R.Civ.P. 58(a), the Court will enter judgment by separate document." Toy v. Soto, 2015 WL 2168744, *1 (CD. Cal. May 5, 2015) (citing Jayne v. Sherman, 706 F.3d 994, 1009 (9^th Cir. 2013)) (footnote 1 omitted), appeal filed, No. 15-55866 (9^th Cir. June 5, 2015).^[3]

         This action is DISMISSED without prejudice.

         The case SHALL BE TERMINATED and closed (JS-6).

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Notes:

^[1]Both Fed.R.Civ.P. 72(b)(2) and 28 U.S.C. section 636(b)(1) provide that a party may file written objections to an R&R within fourteen days after being served with the R&R. Our Local Civil Rule 72-3.3, however, provides that "[i]f a party is in custody at the time of the filing of the Magistrate Judge's Report, the time for filing objections under F.R. Civ. P. 72(b) shall be shall be twenty (20) days or such further time as the Magistrate Judge may order."

"Consistent with the Federal Rule governing Magistrate Judges and the Federal Magistrates Act, the Court construes that to mean twenty calendar days after the incarcerated party is served with the R&R, not merely twenty days after the R&R is filed on the docket." Crump v. CSP-Los Angeles County's Maintenance-Plant Operations Dep't, ...