Lewis v. Unknown

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA DONALD R. LEWIS, Case No. 20-cv-1042-MMA (MSB) 12 Petitioner, ADOPTING REPORT AND v. RECOMMENDATION AND DENYING RESPONDENTS’ MR. PICKETT, Warden, and ROB MOTION TO DISMISS BONTA, Attorney General of the State of California, [Doc. Nos. 23, 28] Respondents.

19 Donald R. Lewis (“Petitioner”), a state prisoner proceeding pro se, filed a petition for writ of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254. See Doc. No. 17.

21 Respondents Mr. Pickett and Rob Bonta1 (“Respondents”) filed a motion to dismiss on the grounds that the Petition is untimely. See Doc. No. 23. The matter was referred to United States Magistrate Judge Michael S. Berg for preparation of a Report and Recommendation (“R&R”) pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rules 72.1.d and HC.2. The Magistrate Judge has issued a R&R recommending that the Court Rob Bonta replaced Xavier Becerra as Attorney General of California. Therefore, he is automatically ||(1) deny Respondents’ motion to dismiss without prejudice and (2) order Respondents to ||file an answer. See Doc. No. 28 at 21.

3 The duties of the district court in connection with a magistrate judge’s R&R are set ||forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1).

5 ||Where the parties object to a R&R, “[a] judge of the [district] court shall make a de novo ||determination of those portions of the [R&R] to which objection is made.” 28 U.S.C. ||§ 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). A district judge may ||“accept, reyect, or modify, in whole or in part, the findings or recommendations made by ||the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 ||F.2d 614, 617 (9th Cir. 1989); Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. ||2006). Objections to the R&R were due no later than June 1, 2021. See Doc. No. 28 at ||21. To date, no objections have been filed, and the time for doing so has expired.

13 The Court finds that the Magistrate Judge has issued an accurate Report and well- ||/reasoned Recommendation that the motion be denied. The Court therefore ADOPTS the ||R&R in its entirety and DENIES Respondents’ motion to dismiss without prejudice. The ||Magistrate Judge will issue a separate scheduling order in due course.

17 IT IS SO ORDERED.

19 |/Dated: June 10, 2021 HON. MIC HAEL M. ANELLO United States District Judge