Opinion
CASE NO. C08-5672 FDB.
July 31, 2009
ORDER ADOPTING REPORT AND RECOMMENDATION
The procedural history of this case is outlined by the Magistrate Judge in his Report and Recommendation. Respondent answered and responded seeking dismissal once in response to the first Petition and again in response to the Amended Petition. The Magistrate Judge quoted language from Petitioner's "Motion To Withdrawal of Amended Brief in Support of Habeas Corpus Petition § 2254" that the Court viewed as an attempt to voluntarily dismiss the petition: "[t]he Petitioner has recently received the formal response of the Attorney General concerning the Amended Supplemental Brief and hereby concedes to the Statute cited therein to the withdrawal of this petitioner's Habeas Corpus Petition and Brief." (Dkt. # 26) Petitioner now, however, states in his "Motion In Response To Report and Recommendation" [Dkt. # 28] that "he is not seeking to withdraw, nor even to amend his petition," and that "Petitioner has not intentionally conceded to any federal statute. . . ." [Dkt. 28 p. 2.]
The Court has reviewed the file in this case, including the referenced documents, and concludes that this cause of action must be dismissed. The Respondent has argued that Petitioner's claims are unexhausted and now procedurally barred. Petitioner has presented no argument to the contrary in his response to the Report and Recommendation, and Petitioner has had two opportunities to so respond.
The Court, having reviewed the petition, the Report and Recommendation of the Hon. J. Richard Creatura, United States Magistrate Judge, objections to the Report and Recommendation, and the remaining record, does hereby find and Order:
(1) The Court adopts the Report and Recommendation;
(2) The petition for writ of habeas corpus is DISMISSED WITH PREJUDICE.
(3) The Clerk is directed to send copies of this Order to petitioner and to counsel for respondent.