Opinion
Case No.: 18cv2607-CAB-WVG
08-21-2019
GENO GOMEZ, Plaintiff, v. W.L. MONTGOMERY, Warden, et al., Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION, DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY
On November 13, 2018, Petitioner Geno Gomez ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, [Doc. No. 1.] On February 22, 2019, Respondent filed a motion to dismiss the petition. [Doc. Nos. 8 and 9.] Petitioner did not file a response.
On July 11, 2019, Magistrate Judge William V. Gallo issued a Report and Recommendation ("Report"), recommending that the Court dismiss the Petition without prejudice to Petitioner pursuing his claim under 42 U.S.C. §1983. [Doc. No. 10.] The Report also ordered that any objections were to be filed by August 16, 2019. [Report at 9.] To date, no objection has been filed, nor has there been a request for additional time in which to file an objection.
A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. The Court reviews de novo those portions of the Report and Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. 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) (emphasis in original). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Id.
Here, neither party has timely filed objections to the Report. Having reviewed it, the Court finds that it is thorough, well-reasoned, and contains no clear error. Accordingly, the Court HEREBY ADOPTS Magistrate Judge Gallo's Report and Recommendation [Doc. No. 10] in its entirety. For the reasons stated in the Report, which is incorporated herein by reference, the Court DISMISSES the Petition without prejudice to Petitioner pursuing his claim in a separate action under 42 U.S.C. §1983.
Moreover, because the Court does not believe that reasonable jurists would find the Court's assessment of the constitutional claims debatable or wrong it DECLINES to issue a Certificate of Appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS SO ORDERED. Dated: August 21, 2019
/s/_________
Hon. Cathy Ann Bencivengo
United States District Judge