Opinion
Case No. 2:19-cv-01650-PSG (AFM)
03-19-2020
JOSHUA KANE SMITH, Petitioner, v. C. KOENIG, 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 ("R&R") recommending that the stay previously granted in this action be lifted. The Court construes Petitioner's "Notice of Withdrawal" to be objections to the R&R and has engaged in a de novo review of those portions of the R&R to which objections have been made.
The Court accepts the findings and recommendations of the Magistrate Judge, and Petitioner's objections are overruled. Petitioner indicates that since the stay was granted, he has presented his unexhausted claim to the Los Angeles County Superior Court, which denied it. He also states that he "intends" to file a petition in the California Court of Appeal "within the next few days." As explained in the R&R, however, Petitioner has been cautioned more than once that he must present his claim to the California Supreme Court and that unexcused delay in doing so could result in an order vacating the stay. This action has been stayed for eight months. Notwithstanding repeated warnings and opportunities to do so, Petitioner concedes that he still has not filed a petition in the California Supreme Court. While Petitioner states that he has no legal training and limited education, these facts do not demonstrate that he acted diligently. Petitioner's objections fail to explain why he has been unable to file a petition in the California Supreme Court raising his unexhausted claim during the eight months that this action has been stayed.
IT THEREFORE IS ORDERED that (1) the Report and Recommendation of the Magistrate Judge is accepted and adopted; and (2) the stay previously entered is vacated. DATED: 3/19/2020
/s/_________
PHILIP S. GUTIERREZ
UNITED STATES DISTRICT JUDGE