Opinion
Case No.: 3:16-cv-02421-BEN-AGS
08-28-2017
MICHAEL AGUON, Petitioner, v. WARREN L. MONTGOMERY, Warden, Respondent.
ORDER:
(1) ADOPTING REPORT AND RECOMMENDATION;
(2) GRANTING MOTION TO STAY; and
(3) DENYING RESPONDENT'S MOTION TO DISMISS
Petitioner Michael Aguon has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Docket No. 1). Subsequently, the Honorable Jan M. Adler issued a notice regarding possible dismissal of Petitioner's petition for failure to exhaust state court remedies. (Docket No. 2). Four of the five claims in Petitioner's federal petition have not been exhausted in state court. Respondent filed a motion to dismiss for failure to exhaust. (Docket No. 10). Petitioner responded, requesting a stay under Rhines v. Weber, 544 U.S. 269 (2005). (Docket No. 12).
On June 12, 2017, the Honorable Andrew G. Schopler issued a Report and Recommendation, which recommended granting Petitioner's request for a stay and denying Respondent's motion to dismiss. (Docket No. 13). Judge Schopler found that Petitioner is entitled to a Rhines stay. Judge Schopler set a deadline for any party to file objections to the Report and Recommendation, but that deadline has now passed, and neither party has filed any objections.
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. 13). Petitioner's request for a stay is GRANTED (Docket No. 12) and Respondent's motion to dismiss for failure to exhaust is DENIED (Docket No. 10).
This action is STAYED until the California Supreme Court rules on Petitioner's pending state habeas petition. Petitioner is required to file a status report about his state habeas petition every two months. Petitioner is further ordered to file a final status report within seven (7) days of any ruling on his state habeas petition.
IT IS SO ORDERED. Dated: August 28, 2017
/s/_________
Hon. Roger T. Benitez
United States District Judge