CASE NO. 11cv1135 WQH (BGS) (S.D. Cal. Mar. 22, 2012)

CASE NO. 11cv1135 WQH (BGS)


RODNEY LYDELL TILLIS, Petitioner, v. ANTHONY HEDGEPETH, Warden, Respondent.


HAYES, Judge:

The matter before the Court is the Report and Recommendation (ECF No.15) of the Honorable Magistrate Judge Bernard G. Skomal.

I. Background

On May 19, 2011, Petitioner Rodney Lydell Tillis filed a Petition for Writ of Habeas Corpus. (ECF No. 1).

On September 21, 2011, Respondent filed a Motion to Dismiss the Petition for Writ of Habeas Corpus on the grounds that Petition did not exhaust his available state remedies. (ECF No. 13). Petitioner did not file an opposition.

On January 15, 2012, the Magistrate Judge issued a Report and Recommendation (ECF No. 15) recommending that the Motion to Dismiss be granted. The Magistrate Judge found that Petitioner's direct appeal had been transferred to the California Court of Appeal on August 24, 2011, by the California Supreme Court for reconsideration. The Magistrate Judge also found that Petitioner had filed a petition for writ of habeas corpus in the California Superior Court, but not in the California Court of Appeal or the California Supreme Court. The Magistrate Judge concluded that Petitioner had not exhausted his available state remedies. The Magistrate Judge recommended that the Petition for Writ of Habeas Corpus be dismissed without prejudice.

To date, neither party has filed any objection to the Report and Recommendation.

II. Discussion

The duties of the district court in connection with a Report and Recommendation of a Magistrate Judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1). When a party objects to a Report and Recommendation, "[a] judge of the [district] court shall make a de novo determination of those portions of the [Report and Recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). When no objections are filed, the district court need not review the Report and Recommendation de novo. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Fed. R. Civ. P. 72(b); see also 28 U.S.C. § 636(b)(1).

Neither party objected to the Magistrate Judge's Report and Recommendation in this case. This Court has reviewed the Report and Recommendation and the record in its entirety. The Magistrate Judge correctly concluded that Petitioner has failed to exhaust his available state remedies prior to filing the Petition for Writ of Habeas Corpus.

III. Certificate of Appealability

A certificate of appealability must be obtained by a petitioner in order to pursue an appeal from a final order in a Section 2254 habeas corpus proceeding. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Id.

A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). It must appear that reasonable jurists could find the district court's assessment of the petitioner's constitutional claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The Court concludes that jurists of reason could not find it debatable whether this Court was correct in dismissing the Petition. The Court denies a certificate of appealability.

IV. Conclusion

IT IS HEREBY ORDERED that the Report and Recommendation (ECF No.15) is adopted in its entirety. The Motion to Dismiss the Petition for Writ of Habeas Corpus filed by Respondent (ECF No. 13) is GRANTED. The Petition for Writ of Habeas Corpus (ECF No. 1) is DISMISSED without prejudice. A certificate of appealability is DENIED.



United States District Judge