Opinion
No. CV 11-01138-PHX-FJM
04-11-2012
Roderick Tyler Kamalo, Petitioner, v. Lance R. Hetmer, et al., Respondents.
ORDER
The court has before it petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (doc. 1), respondents' limited answer (doc. 11), and the Report and Recommendation of the United States Magistrate Judge (doc. 13). No objections to the Report and Recommendation were filed and the time for doing so has expired.
The magistrate judge concluded that petitioner presented a mixed petition, in that he presented exhausted and unexhausted claims. In this situation, we may dismiss the petition or grant a stay. A stay and abeyance is only appropriate if petitioner had good cause for his failure to exhaust and his claims are potentially meritorious. Rhines v. Weber, 544 U.S. 269, 278, 125 S. Ct. 1528, 1535 (2005). Petitioner has not filed a motion to stay and abey while he exhausts his claim of actual innocence. The magistrate judge found that petitioner did not have good cause for his failure to exhaust and his claim is not potentially meritorious. We agree, and decline to stay consideration of the petition.
We "make a de novo determination of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). We 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). Since no objections have been made, we accept in whole the recommendations made by the magistrate judge.
Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." If a habeas petition is denied on procedural grounds without reaching the merits, a certificate of appealability "should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000). The magistrate judge found, and we agree, that jurists of reason would not find the correctness of our procedural ruling debatable.
IT IS ORDERED accepting the Report and Recommendation of the magistrate judge (doc. 13) and DENYING the petition under 28 U.S.C. § 2254 for a writ of habeas corpus (doc. 1).
IT IS FURTHER ORDERED DENYING a certificate of appealability.
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Frederick J. Martone
United States District Judge