Opinion
No. CV-05-3136-PHX-SMM (LOA).
June 15, 2006
ORDER
On May 8, 2006, Magistrate Judge Lawrence O. Anderson filed a Report and Recommendation, advising this Court that Petitioner's Petition for Writ of Habeas Corpus (Dkt. 1) should be denied on the grounds that his claims are procedurally defaulted and barred from federal habeas review. (Dkt. 13 at 7-9.) In addition, Judge Anderson denied Petitioner's request for voluntary dismissal as futile because the statute of limitations has expired and a subsequent federal petition would therefore be untimely. (Id. at 9.) Petitioner's request for voluntary dismissal was also denied because he has not actually exhausted any claims, and, thus, there are no claims to hold in abeyance. (Id. at 10.) To date, Plaintiff has not filed objections to Judge Anderson's Report and Recommendation.
STANDARD OF REVIEW
When reviewing a Magistrate Judge's Report and Recommendation, this Court must "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)(C); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).
By failing to object to a Report and Recommendation, a party waives his right to challenge the Magistrate's factual findings, but not necessarily the Magistrate's legal conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (failure to object to Magistrate's legal conclusion "is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal"); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980)).
DISCUSSION
Having reviewed the legal conclusions of the Report and Recommendation of the Magistrate Judge, and no objections having been made by Plaintiff thereto, the Court hereby incorporates and adopts the Magistrate Judge's Report and Recommendation.
CONCLUSION
For the reasons set forth,
IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation of Magistrate Judge Lawrence O. Anderson. (Dkt. 13.)
IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus (Dkt. 1) and this action are DISMISSED WITH PREJUDICE. The Clerk of Court shall terminate this action accordingly.
IT IS FURTHER ORDERED that Petitioner's request for voluntary dismissal be DENIED. (Dkt. 12.)
IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of this Order to all parties as well as to Magistrate Judge Lawrence O. Anderson.