Larry Charles Cleveland v. J. Soto

Filing 25

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Dale S. Fischer for Report and Recommendation (Issued) 19 . IT IS ORDERED that: (1) Petitioner's request for a Rhines stay is DENIED; and (2) Within 21 days of this Order, Petitioner is dir ected 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. (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LARRY CHARLES CLEVELAND,

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Petitioner

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v.

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J. SOTO,

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Case No. CV 16-2118-DSF (GJS)

Respondent.

ORDER ACCEPTING FINDINGS
AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE
JUDGE

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition and all

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pleadings, motions, and other documents filed in this action, the Report and

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Recommendation of United States Magistrate Judge (“Report”), Petitioner’s

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Objections to the Report, Petitioner’s June 13, 2016 request asking the Magistrate

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Judge to reconsider the Report, and the Magistrate Judge’s order denying the

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reconsideration request (“Reconsideration Order”). Pursuant to 28 U.S.C. §

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636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has conducted a de novo review of

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those portions of the Report to which objections have been stated.

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Petitioner states four objections to the report. First, he reiterates his argument

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that the Supreme Court’s decision in Riley v. California, 134 S. Ct. 2473 (2014),

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justified filing a “mixed” petition and warrants imposing a Rhines stay. The Report

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(at pp. 7-8) adequately explains why Petitioner’s Riley argument lacks merit.

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Moreover, since the Report issued, the Ninth Circuit has confirmed that Riley is not

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retroactive. See Ly v. Beard, No. 15-70939, 2016 WL 3318881, at *1 (9th Cir. June

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15, 2016). Petitioner next asserts perfunctorily that his “confusion” about his statute

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of limitations deadline satisfies the Rhines good cause requirement. For the reasons

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set forth in the Reconsideration Order, this second objection is unpersuasive. Third,

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Petitioner contends that the Magistrate Judge purportedly found a Rhines stay

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unwarranted on the ground that the California Supreme Court’s dockets did not

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show a habeas filing by Petitioner. Petitioner, however, mischaracterizes the

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Report. (See Report at pp. 7-9.) Finally, as his fourth objection, Petitioner argues

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that his appellate counsel’s failure to raise a Riley claim on appeal would constitute

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“cause” to excuse any procedural default of the claim in this Court. Whether or not

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this assertion is correct legally, it has no bearing on the Rhines stay issue, for the

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reasons explained in the Report and the Reconsideration Order.

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Nothing in the Objections affects or alters the analysis and conclusions set forth

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in the Report. Having completed its de novo review, the Court accepts the findings

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and recommendations set forth in the Report.

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Accordingly, IT IS ORDERED that:

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(1) Petitioner’s request for a Rhines stay is DENIED; and

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(2) Within 21 days of this Order, Petitioner is directed to elect one of his three

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Options set forth in the Report at pp. 9-10. Petitioner is cautioned that the

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failure to elect one of these three Options in a timely manner will be deemed

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to constitute an election of Option One, and as a result, this action will be

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dismissed without prejudice.

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IT IS SO ORDERED.
7/12/16
DATE: ____________________

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DALE S. FISCHER
UNITED STATES DISTRICT JUDGE
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