Opinion
Case No. CV 16-2118-DSF (GJS)
07-12-2016
LARRY CHARLES CLEVELAND, Petitioner v. J. SOTO, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition and all pleadings, motions, and other documents filed in this action, the Report and Recommendation of United States Magistrate Judge ("Report"), Petitioner's Objections to the Report, Petitioner's June 13, 2016 request asking the Magistrate Judge to reconsider the Report, and the Magistrate Judge's order denying the reconsideration request ("Reconsideration Order"). Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has conducted a de novo review of those portions of the Report to which objections have been stated.
Petitioner states four objections to the report. First, he reiterates his argument that the Supreme Court's decision in Riley v. California, 134 S. Ct. 2473 (2014), justified filing a "mixed" petition and warrants imposing a Rhines stay. The Report (at pp. 7-8) adequately explains why Petitioner's Riley argument lacks merit. Moreover, since the Report issued, the Ninth Circuit has confirmed that Riley is not retroactive. See Ly v. Beard, No. 15-70939, 2016 WL 3318881, at *1 (9th Cir. June 15, 2016). Petitioner next asserts perfunctorily that his "confusion" about his statute of limitations deadline satisfies the Rhines good cause requirement. For the reasons set forth in the Reconsideration Order, this second objection is unpersuasive. Third, Petitioner contends that the Magistrate Judge purportedly found a Rhines stay unwarranted on the ground that the California Supreme Court's dockets did not show a habeas filing by Petitioner. Petitioner, however, mischaracterizes the Report. (See Report at pp. 7-9.) Finally, as his fourth objection, Petitioner argues that his appellate counsel's failure to raise a Riley claim on appeal would constitute "cause" to excuse any procedural default of the claim in this Court. Whether or not this assertion is correct legally, it has no bearing on the Rhines stay issue, for the reasons explained in the Report and the Reconsideration Order.
Nothing in the Objections affects or alters the analysis and conclusions set forth in the Report. Having completed its de novo review, the Court accepts the findings and recommendations set forth in the Report.
Accordingly, IT IS ORDERED that:
(1) Petitioner's request for a Rhines stay is DENIED; and
(2) Within 21 days of this Order, Petitioner is directed to elect one of his three Options set forth in the Report at pp. 9-10. Petitioner is cautioned that the failure to elect one of these three Options in a timely manner will be deemed to constitute an election of Option One, and as a result, this action will be dismissed without prejudice.
IT IS SO ORDERED. DATE: 7/12/16
/s/_________
DALE S. FISCHER
UNITED STATES DISTRICT JUDGE