Lewis v. Unknown

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

DONALD R. LEWIS, Case No. 20-cv-1042-MMA (MSB) 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.

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. 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.

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). 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. 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.

IT IS SO ORDERED.

/Dated: June 10, 2021

HON. MIC HAEL M. ANELLO United States District Judge