Opinion
Case No. 2:17-cv-1797-SU
01-10-2018
EVAN KIEL ANDERSON, Petitioner, v. BRAD CAIN, Respondent.
ORDER
Michael H. Simon, District Judge.
United States Magistrate Judge Patricia Sullivan issued Findings and Recommendation in this case on December 6, 2017. ECF 7. Judge Sullivan recommended that Petitioner's petition for writ of habeas corpus be dismissed. No party has filed objections.
Under the Federal Magistrates Act ("Act"), the court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate's findings and recommendations, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; Fed. R. Civ. P. 72(b)(3).
If no party objects, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) ("There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed."); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate's findings and recommendations if objection is made, "but not otherwise").
Although review is not required in the absence of objections, the Act "does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that "[w]hen no timely objection is filed," the court review the magistrate's findings and recommendations for "clear error on the face of the record."
No party having made objections, this Court follows the recommendation of the Advisory Committee and reviews Judge Sullivan's Findings and Recommendation for clear error on the face of the record. No such error is apparent. Accordingly, the Court ADOPTS Judge Sullivan's Findings and Recommendation, ECF 7. Petitioner's Petition for Writ of Habeas Corpus (ECF 2) is DISMISSED without prejudice for lack of exhaustion. The Court declines to issue a Certificate of Appealability because the dismissal is without prejudice.
IT IS SO ORDERED.
DATED this 10th day of January, 2018.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge