Opinion
No. SA CV 19-01302-VBF-RAO
11-14-2019
AARON GUARDADO, Petitioner, v. NEIL MCDOWELL (Warden), Respondent.
ORDER Adopting the R & R: Dismissing the Action Without Prejudice for Lack of Prosecution Directing Entry of Separate Judgment; Terminating the case (JS-6)
This is a California state prisoner's action for a writ of habeas corpus pursuant to 28 U.S.C. section 2254. The United States Magistrate Judge issued a Report and Recommendation ("R&R") on September 17, 2019, recommending that the Court dismiss the action without prejudice due to petitioner's failure to prosecute this action with reasonable diligence. See CM/ECF Document ("Doc") 12. The accompanying Notice of Filing (Doc 11) advised the parties that they had to file any objections to the R&R no later than October 7, 2019.
Neither party has filed objections, and Fed. R. Civ. P. 72(b)(3) requires de novo review only of those parts of an R&R to which a party has timely objected. See Khan v. Langford, 2018 WL 1271204, *1 (C.D. Cal. Mar. 8, 2018) (citing, inter alia, US v. Reyna Tapia, 328 F.3d 1114, 1121 (9 Cir. 2003) (en banc)).
But the Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that when no timely objection is filed, the Court should review the R&R "for clear error on the face of the record." Juarez, 2016 WL 2908238 at *2 (cite omitted); accord Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1420 (5 Cir. 1996) (en banc); Benitez v. Parmer, 654 F. App'x 502, 503 (2d Cir. 2016) ("Because Benitez thus made only a general objection, the district court reviewed the 2013 R&R for clear error.") (citing, inter alia, Adv. Comm. Notes to 1983 Am. of Fed. R. Civ. P. 72(b)).
Whether on de novo or clear-error review, the Court finds no defect of law, fact, or logic in the R&R. Accordingly, the Court will accept the Magistrate Judge's findings and conclusions and implement her recommendation.
ORDER
The Report and Recommendation [Doc #12] is ADOPTED.
The petition for a writ of habeas corpus [Doc # 1] is DISMISSED without prejudice due to petitioner's lack of prosecution.
Petitioner's motion for stay and abeyance [Doc #4] is DENIED as moot.
Respondent's motion to dismiss claims two and three with prejudice as untimely and proceed only on claim one [Doc #8] is DENIED as moot.
As required by Fed. R. Civ. P. 58(a), judgment will be a separate document.
The case SHALL BE TERMINATED and closed (JS-6).
IT IS SO ORDERED. Dated: November 14, 2019
/s/_________
Honorable Valerie Baker Fairbank
Senior United States District Judge