Opinion
Case No.: 17cv174-CAB-AGS
01-19-2018
ANDREW MUNDY, Plaintiff, v. RAYMOND MADDEN, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING MOTION FOR A STAY AND DISMISSING UNEXHAUSTED CLAIM [Doc. Nos. 6, 11]
On January 26, 2017, Petitioner Andrew Mundy ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, [Doc. No. 1.] On June 15, 2017, Petitioner filed a motion for stay and abeyance. [Doc. No. 6.] On June 29, 2017, Respondent filed an opposition to the motion for stay and abeyance. [Doc. No. 9.]
On December 4, 2017, Magistrate Judge Andrew G. Schopler issued a Report and Recommendation ("Report"), recommending the Court deny the motion for stay and dismiss the unexhausted ineffective-assistance-of-counsel claim. [Doc. No. 11.] The Report also ordered that any objections were to be filed within 14 days. [Report at 2.] To date, no objection has been filed, nor has there been a request for additional time in which to file an objection.
A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. The Court reviews de novo those portions of the Report and Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. 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) (emphasis in original). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Id.
Here, neither party has timely filed objections to the Report. Having reviewed it, the Court finds that it is thorough, well-reasoned, and contains no clear error. Accordingly, the Court HEREBY ADOPTS Magistrate Judge Schopler's Report and Recommendation [Doc. No. 11] in its entirety. For the reasons stated in the Report, which is incorporated herein by reference, the Court DENIES the motion for stay and abeyance [Doc. No. 6] and DISMISSES the unexhausted ineffective-assistance-of-counsel claim.
IT IS SO ORDERED. Dated: January 19, 2018
/s/_________
Hon. Cathy Ann Bencivengo
United States District Judge