Opinion
3:22-cv-1350-RBM-LR
05-19-2023
MICHAEL BRUGMAN, Petitioner, v. PATRICK EATON, Respondent.
ORDER: (1) ADOPTING REPORT AND RECOMMENDATION (2) DENYING STAY UNDER RHINES AND GRANTING STAY PURSUANT TO KELLY (3) STAYING CASE [Docs. 6, 9]
HON RUTH BERMUDEZ MONTENEGRO UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner represented by counsel, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Presently before the Court is Petitioner's Application to Hold Federal Habeas Petition in Abeyance Pending Exhaustion of Issues in State Court (“Motion to Stay”). (Doc. 6.) Respondent filed a Response that does not oppose the granting of a stay, but asserts the stay should be granted under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) and King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) rather than under Rhines v. Weber, 544 U.S. 269 (2005) as requested by Petitioner. (Doc. 8.)
Magistrate Judge Lupe Rodriguez, Jr. issued a Report and Recommendation (“R&R”) on May 2, 2023 recommending that the Motion to Stay be denied as to a stay under Rhines and granted as to a stay under Kelly. (Doc. 9.) Any objections to the R&R were required to be filed no later than May 17, 2023. (Doc. 9 at 9.)
A district court “may accept, reject, 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). The district judge must “make a de novo determination of those portions of the report . . . to which objection is made[,]” but not otherwise. § 636(b)(1); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“The 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.”) (emphasis in original).
Neither party has filed any objections to the Magistrate Judge's R&R. Thus, having reviewed the R&R, the Court finds it thorough, well-reasoned, and contains no clear error. Accordingly, the Court hereby: (1) ADOPTS the Magistrate Judge's R&R in its entirety (Doc. 9); (2) DENIES a stay under Rhines and GRANTS a stay under Kelly; and (3) STAYS this case.
Petitioner is DIRECTED to file a status report no later than August 17, 2023 and every ninety (90) days thereafter that details his progress toward exhaustion. The Clerk of Court will administratively close this case until further Order of this Court.
IT IS SO ORDERED.