Opinion
Case No. 16-cv-02041-BAS-BGS
02-17-2017
DONNELL D. FULCHER, Petitioner, v. S. HATTON, Warden, Respondent.
ORDER:
(1) APPROVING AND ADOPTING REPORT AND RECOMMENDATION IN ITS ENTIRETY (ECF No. 11);
(2) GRANTING PETITIONER'S MOTION FOR VOLUNTARY DISMISSAL (ECF No. 10); AND
(3) TERMINATING AS MOOT RESPONDENT'S MOTION TO DISMISS (ECF No. 7)
Petitioner, a state prisoner proceeding pro se and in forma pauperis, submitted a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 1.) Respondent moves to dismiss the Petition. (ECF No. 7.) Respondent argues the Petition should be dismissed because Petitioner previously challenged the same conviction in Fulcher v. R.H. Trimble, Case No. 11-cv-0959-CAB-WMC (S.D. Cal. filed May 2, 2011). (Id.) In addition, Petitioner moves for voluntary dismissal of his Petition. (ECF No. 10.) In his motion, Petitioner concedes that he lacks leave from the Ninth Circuit Court of Appeals to file this second and successive petition. (Id.) Thus, Petitioner requests that the Court dismiss his Petition without prejudice. (Id.)
On January 31, 2017, U.S. Magistrate Judge Bernard G. Skomal issued a Report and Recommendation ("R&R") recommending that this Court grant Petitioner's motion for voluntary dismissal. (ECF No. 11.) The magistrate judge reasoned that dismissal without prejudice is appropriate under Federal Rule of Civil Procedure 41(a)(2). (Id.) No objections have been filed to the R&R.
The Court reviews de novo those portions of the R&R 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. But "[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 Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district court had no obligation to review the magistrate judge's report). "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. "When no objections are filed, the de novo review is waived." Marshall v. Astrue, No. 08cv1735, 2010 WL 841252, at *1 (S.D. Cal. Mar. 10, 2010) (Lorenz, J.) (adopting report in its entirety without review because neither party filed objections to the report despite the opportunity to do so).
In this case, no objections have been filed, and neither party has requested additional time to do so. Consequently, the Court may adopt the R&R on that basis alone. See Reyna-Tapia, 328 F.3d at 1121. Having nonetheless conducted a de novo of the R&R, the Court concludes that Judge Skomal's reasoning is sound. Accordingly, the Court hereby APPROVES and ADOPTS the R&R in its entirety (ECF No. 11), GRANTS Petitioner's motion for voluntary dismissal (ECF No. 10), and TERMINATES AS MOOT Respondent's motion to dismiss (ECF No. 7). Accordingly, the Court DISMISSES WITHOUT PREJUDICE this action. The Clerk of the Court is directed to close this case.
IT IS SO ORDERED. DATED: February 17, 2017
/s/ _________
Hon. Cynthia Bashant
United States District Judge