Opinion
Case No. CV 15-01543 AG (AFM)
03-31-2016
SONIA A. DIAZ, Petitioner, v. D.K. JOHNSON, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file and the Report and Recommendation of United States Magistrate Judge. No objections to the Report have been filed herein.
After the Report and Recommendation was issued, the Ninth Circuit held in Mena v. Long, ___ F.3d___, 2016 WL 625405, at *4 (9th Cir. Feb. 17, 2016), that district courts have discretion to grant requests to stay and hold in abeyance fully unexhausted habeas petitions under Rhines v. Weber, 544 U.S. 269 (2005). Because the district court in Mena had denied petitioner's request for a Rhines stay based on the belief it lacked authority to stay a fully unexhausted petition, the Ninth Circuit reversed and remanded for a decision in the first instance as to whether the petitioner was entitled to a stay. See Mena, 2016 WL 625405, at *4. Based on Mena, the citation to Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006), at page 4, lines 2-4 of the Report and Recommendation is stricken.
Although the Petition herein is fully unexhausted, Mena is factually distinguishable from the present case. The petitioner in Mena requested a Rhines stay, which was denied by the district court. Here, petitioner never requested a Rhines stay, and petitioner did not address respondent's contention that the Petition is fully unexhausted. Petitioner also did not file objections to the Magistrate Judge's recommendation that the Petition should be dismissed without prejudice as fully unexhausted. Accordingly, Mena does not compel a different result in this case.
IT THEREFORE IS ORDERED that (1) the case citation on page 4, lines 2-4 of the Report and Recommendation is stricken; (2) the Report and Recommendation of the Magistrate Judge otherwise is accepted and adopted; and (3) Judgment shall be entered denying the Petition and dismissing the action without prejudice. DATED: March 31, 2016
/s/_________
ANDREW J. GUILFORD
UNITED STATES DISTRICT JUDGE