Opinion
Case No.: 3:16-cv-01403-BEN-AGS
01-27-2017
SOCORRO VIDAL COLIN, Petitioner, v. JUAN TORRIE, Respondent.
ORDER:
(1) ADOPTING REPORT AND RECOMMENDATION;
(2) DENYING MOTION TO STAY; and
(3) ORDERING PETITIONER TO SHOW CAUSE WHY HER PETITION SHOULD NOT BE DISMISSED AS UNTIMELY
Petitioner Socorro Vidal Colin filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 on June 8, 2016. (Docket No. 1). Subsequently, on June 13, 2016, the Honorable Ruben B. Brooks issued a notice regarding possible dismissal of Petitioner's petition for failure to exhaust state court remedies. (Docket No. 2). Petitioner then filed a motion to stay the federal proceedings while she returns to state court to exhaust the unexhausted claims. (Docket No. 4). Respondent filed an opposition, but Petitioner chose not to reply.
On December 23, 2016, the Honorable Andrew G. Schopler issued a Report and Recommendation recommending denial of Petitioner's motion to stay and issuance of an order to show cause why Petitioner's petition should not be dismissed as untimely. (Docket No. 12). "Within 14 days after being served with a copy of the recommended disposition, a party may serve and file written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). The deadline to object has now passed, and neither party has filed any objections. For 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. (Docket No. 12). Petitioner's motion to stay is DENIED. (Docket No. 4). See Blake v. Baker, 745 F.3d 977, 981-82 (9th Cir. 2014) ("[R]outinely granting stays would undermine the AEDPA's goals of encouraging finality and streamlining federal habeas proceedings.").
For the reasons discussed in the Report and Recommendation, Petitioner is ORDERED TO SHOW CAUSE why her petition should not be dismissed as untimely. A response to the order to show cause is due by March 6 , 2017.
IT IS SO ORDERED. Dated: January 27, 2017
/s/_________
Hon. Roger T. Benitez
United States District Judge