Opinion
Case No.: 3:16-cv-00969-BEN-BLM
02-03-2017
KENDRICK LAMOUNT WINE, Petitioner, v. JOSIE GASTELO, Warden, et al., Respondents.
ORDER:
(1) ADOPTING REPORT AND RECOMMENDATION;
(2) DENYING MOTION TO AMEND;
(3) GRANTING MOTION TO DISMISS; and
(4) DISMISSING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE
Petitioner Kendrick Lamount Wine filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 on April 20, 2016 and a First Amended Petition on May 20, 2016. (ECF Nos. 1, 4.) Petitioner is serving a sentence of 18 years-to-life imposed following a 1991 conviction for second degree murder with a firearm enhancement, committed when he was 17 years old and obtained as a result of a guilty verdict. (FAP at 1-2.) Petitioner challenges a 2015 decision by the California Board of Parole Hearings finding him unsuitable for release on parole, claiming that he was denied a meaningful opportunity for parole in violation of state law and the Eighth Amendment because the decision did not give proper consideration to factors unique to juvenile offenders, but focused on a failure to adequately complete drug and alcohol problems, something which has no bearing on his suitability for parole as he has never had drug or alcohol abuse issues. (Id. at 13.)
Petitioner has filed a Motion to Amend the First Amended Petition. Respondent has filed a Motion to Dismiss the First Amended Petition. Each party opposed the other's motion. On December 12, 2016, Magistrate Judge Barbara L. Major issued a thoughtful and thorough Report and Recommendation recommending denial of Petitioner's Motion to Amend, granting Respondent's Motion to Dismiss, and dismissing the First Amended Petition with prejudice. Magistrate Judge Major found that Petitioner's proposed Second Amended Petition does not include new claims, but merely contains argument and citations in support of the sole claim presented in this action, and should be construed as a Memorandum of Points and Authorities in Support of the First Amended Petition. (R&R at 3-4.) Magistrate Judge Major also found that Petitioner received all the process he was due in connection with his parole hearing, and that he has failed to set forth a prima facie case for federal habeas relief because his allegations, even if true, do not support a finding that his federal constitutional rights were violated. (R&R at 4.)
Any objections to the Report and Recommendation were due January 6, 2017. Neither party has filed any objections. For the reasons that follow, the Report and Recommendation is ADOPTED.
A district judge "may accept, reject, or modify the recommended disposition" of a magistrate judge on a dispositive matter. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). "[T]he district judge must determine de novo any part of the [report and recommendation] that has been properly objected to." Fed. R. Civ. P. 72(b)(3). 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); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Reyna-Tapia, 328 F.3d at 1121.
The Court has considered and agrees with the Report and Recommendation. The Court ADOPTS the Report and Recommendation. (ECF No. 17.) Petitioner's Motion to Amend is DENIED. (ECF No. 9.) See Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th Cir. 1990) ("We have held that a district court does not abuse its discretion in denying a motion to amend . . . when the movant presented no new facts but only new theories."). Respondent's Motion to Dismiss is GRANTED. (ECF No. 11.) Fed. Rs. Governing § 2254 Cases, R. 4 ("If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition."). The Court DISMISSES the First Amended Petition with prejudice.
IT IS SO ORDERED. Dated: February 3, 2017
/s/_________
Hon. Roger T. Benitez
United States District Judge