Tam H. Nguyen v. D. Daveys

Filing 74

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Fernando M. Olguin. IT THEREFORE IS ORDERED that judgment be entered dismissing thePetition without prejudice. The Court takes no position on whether any subsequently filed federal habeas petition would be timely or otherwise procedurally proper. 70 (es)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TAM H. NGUYEN,
Petitioner,

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v.

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THERESA CISNEROS, Acting
Warden,

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Respondent.

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Case No. SACV 17-1863-FMO (JPR)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF U.S.
MAGISTRATE JUDGE

The Court has reviewed the Petition, records on file, and

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Report and Recommendation of U.S. Magistrate Judge, which

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recommends that judgment be entered dismissing the Petition

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without prejudice.

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Petitioner filed Objections to the R. & R., in which he concedes

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the correctness of much of the Magistrate Judge’s analysis.1

See 28 U.S.C. § 636(b)(1).

On June 16, 2021,

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Petitioner also filed a notice of supplemental lodgment,
asking the Court to “electronically” lodge a recent habeas petition
he apparently filed in the superior court and the order denying it.
(Notice at 1.)
He says his original copies of them are
“indisposed.” (Id.) But this Court does not have the ability to
lodge documents it does not possess.
Because the existence of
these documents does not change the Court’s analysis, it assumes
they exist and say what Petitioner says they do.
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Respondent has not responded to the Objections.
As the Magistrate Judge correctly concluded and Petitioner

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does not contest, all of his claims — those raised in the

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original Petition as well as those he reframed in his amended

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reply to the Answer — are unexhausted.

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R. & R. at 10-12).)2

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to have exhausted them in the four years this action has been

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pending.

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that he did not have to wait for this Court to rule on his stay

(See Objs. at 4 (citing

And he has not shown good cause for failing

As the Magistrate Judge pointed out, she twice told him

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motion to go back to state court and raise the claims there.

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(See R. & R. at 14-15.)

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say that “the only reason he held back and did not attempt to

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exhaust before the Court granted the ‘stay’ was because he was

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following the rules as he interpreted them.”

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light of the Magistrate Judge’s clear instructions to the

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contrary — which Petitioner in fact did appear to understand

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because after she so instructed the first time he immediately

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went back to state court to exhaust his original claims (see R. &

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R. at 14) — this bare allegation doesn’t demonstrate good cause.

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And although he’s apparently now trying to exhaust his claims

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(see Objs. at 2-3), he’s years too late.

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He has no answer for this other than to

(Objs. at 5.)

In

Having reviewed de novo those portions of the R. & R. to

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which Petitioner objects, the Court agrees with and accepts the

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findings and recommendations of the Magistrate Judge.

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THEREFORE IS ORDERED that judgment be entered dismissing the

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Petition without prejudice.

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IT

The Court takes no position on

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The Court uses Petitioner’s pagination even though he begins
his Objections with page 2.
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whether any subsequently filed federal habeas petition would be

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timely or otherwise procedurally proper.

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DATED: July 14, 2021

/s/
FERNANDO M. OLGUIN
U.S. DISTRICT JUDGE

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