Colin v. Torrie

Filing 13

ORDER: (1) Adopting 12 Report and Recommendation; (2) Denying 4 Motion to Stay; and (3) Ordering Petitioner to Show Cause Why Her Petition Should Not be Dismissed as Untimely. Petitioner is ordered to show cause why her petition should not be dismissed as untimely. A response to the order to show cause is due by March 6, 2017. Signed by Judge Roger T. Benitez on 1/27/2017. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SOCORRO VIDAL COLIN,

Case No.: 3:16-cv-01403-BEN-AGS
Petitioner,

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v.

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ORDER:

JUAN TORRIE,

(1) ADOPTING REPORT AND
RECOMMENDATION;
Respondent.

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(2) DENYING MOTION TO STAY;
and

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(3) ORDERING PETITIONER TO
SHOW CAUSE WHY HER
PETITION SHOULD NOT BE
DISMISSED AS UNTIMELY

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Petitioner Socorro Vidal Colin filed a petition for writ of habeas corpus under 28

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U.S.C. § 2254 on June 8, 2016. (Docket No. 1). Subsequently, on June 13, 2016, the

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Honorable Ruben B. Brooks issued a notice regarding possible dismissal of Petitioner’s

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petition for failure to exhaust state court remedies. (Docket No. 2). Petitioner then filed

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a motion to stay the federal proceedings while she returns to state court to exhaust the

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unexhausted claims. (Docket No. 4). Respondent filed an opposition, but Petitioner

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chose not to reply.
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3:16-cv-01403-BEN-AGS

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On December 23, 2016, the Honorable Andrew G. Schopler issued a Report and

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Recommendation recommending denial of Petitioner’s motion to stay and issuance of an

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order to show cause why Petitioner’s petition should not be dismissed as untimely.

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(Docket No. 12). “Within 14 days after being served with a copy of the recommended

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disposition, a party may serve and file written objections to the proposed findings and

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recommendations.” Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). The

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deadline to object has now passed, and neither party has filed any objections. For reasons

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that follow, the Report and Recommendation is ADOPTED.
A district judge “may accept, reject, or modify the recommended disposition” of a

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magistrate judge on a dispositive matter. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C.

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§ 636(b)(1). “[T]he district judge must determine de novo any part of the [report and

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recommendation] that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).

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However, “[t]he statute makes it clear that the district judge must review the magistrate

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judge’s findings and recommendations de novo if objection is made, but not otherwise.”

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also

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Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). “Neither the Constitution nor

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the statute requires a district judge to review, de novo, findings and recommendations

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that the parties themselves accept as correct.” Reyna-Tapia, 328 F.3d at 1121.

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3:16-cv-01403-BEN-AGS

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The Court has considered and agrees with the Report and Recommendation. The

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Court ADOPTS the Report and Recommendation. (Docket No. 12). Petitioner’s motion

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to stay is DENIED. (Docket No. 4). See Blake v. Baker, 745 F.3d 977, 981-82 (9th Cir.

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2014) (“[R]outinely granting stays would undermine the AEDPA’s goals of encouraging

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finality and streamlining federal habeas proceedings.”).

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For the reasons discussed in the Report and Recommendation, Petitioner is

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ORDERED TO SHOW CAUSE why her petition should not be dismissed as untimely.

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A response to the order to show cause is due by March 6, 2017.

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IT IS SO ORDERED.
Dated: January 27, 2017

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3:16-cv-01403-BEN-AGS