1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GENO GOMEZ, Case No.: 18cv2607-CAB-WVG

12 Plaintiff, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION, DISMISSING PETITION AND DENYING 14 W.L. MONTGOMERY, Warden, et al., CERTIFICATE OF 15 Defendant. APPEALABILITY 16 17 On November 13, 2018, Petitioner Geno Gomez (“Petitioner”), a state prisoner 18 proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus 19 pursuant to

, [Doc. No. 1.] On February 22, 2019, Respondent filed a 20 motion to dismiss the petition. [Doc. Nos. 8 and 9.] Petitioner did not file a response. 21 On July 11, 2019, Magistrate Judge William V. Gallo issued a Report and 22 Recommendation (“Report”), recommending that the Court dismiss the Petition without 23 prejudice to Petitioner pursuing his claim under

. [Doc. No. 10.] The 24 Report also ordered that any objections were to be filed by August 16, 2019. [Report at 25 9.] To date, no objection has been filed, nor has there been a request for additional time in 26 which to file an objection. 27 A district court’s duties concerning a magistrate judge’s report and 28 recommendation and a respondent’s objections thereto are set forth in Rule 72(b) of the 1 || Federal rules of Civil Procedure and

(b)(1). When no objections are 2 filed, the district court is not required to review the magistrate judge’s report and 3 ||recommendation. The Court reviews de novo those portions of the Report and 4 ||Recommendation to which objections are made.

(b)(1). The Court may 5 “accept, reject, or modify, in whole or in part, the findings or recommendations made by 6 || the magistrate judge.”

However, “[t]he statute makes it clear that the district judge 7 || must review the magistrate judge's findings and recommendations de novo if objection is 8 ||made, but not otherwise.” United States v. Reyna—Tapia,

(9th 9 || Cir. 2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute 10 |/requires a district judge to review, de novo, findings and recommendations that the 11 || parties themselves accept as correct.”

12 Here, neither party has timely filed objections to the Report. Having reviewed it, 13 || the Court finds that it is thorough, well-reasoned, and contains no clear error. 14 || Accordingly, the Court HEREBY ADOPTS Magistrate Judge Gallo’s Report and 15 || Recommendation [Doc. No. 10] in its entirety. For the reasons stated in the Report, 16 || which is incorporated herein by reference, the Court DISMISSES the Petition without 17 || prejudice to Petitioner pursuing his claim in a separate action under

. 18 Moreover, because the Court does not believe that reasonable jurists would find the 19 || Court’s assessment of the constitutional claims debatable or wrong it DECLINES to 20 |/issue a Certificate of Appealability. See Slack v. McDaniel,

(2000). 21 IT IS SO ORDERED. 22 ||Dated: August 21, 2019 € 23 Hon. Cathy Ann Bencivengo 24 United States District Judge 25 26 27 28