Keigwin v. Lizarraga
Filing
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ORDER Adopting 10 Report and Recommendation; and Denying 3 Motion for Stay and Abeyance as Moot. Signed by Judge Gonzalo P. Curiel on 9/30/16. (All non-registered users served via U.S. Mail Service)(dlg)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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KENT KEIGWIN,
Case No.: 3:16-cv-01451-GPC-NLS
Petitioner,
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v.
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ORDER:
J. LIZARRAGA,
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(1) ADOPTING REPORT AND
RECOMMENDATION; AND
Respondent.
(2) DENYING MOTION FOR STAY
AND ABEYANCE AS MOOT
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[ECF Nos. 3, 10.]
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On June 10, 2016, Petitioner Kent Keigwin (“Petitioner”), a state inmate
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proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus
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(“Petition”) pursuant to 28 U.S.C. § 2254 challenging his judgment of conviction in the
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Superior Court of California in San Diego. (Dkt. No. 1.) Petitioner also filed a motion
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for stay and abeyance on the same day, requesting this Court to stay the Petition pending
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a final decision by the California Supreme Court for unexhausted claims he raised in the
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Petition. (Dkt. No. 3.) In the response to the motion for stay and abeyance, Respondent
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J. Lizarraga (“Respondent”) noted that the California Supreme Court issued a decision on
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July 13, 2016 denying Petitioner’s habeas petition filed in that court. (Dkt. No. 9 at 4,
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3:16-cv-01451-GPC-NLS
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Opp’n, Ex. A.) Respondent states that accordingly, the stay and abeyance issue is now
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moot.
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Before the Court is a Report and Recommendation (“Report”) issued by Magistrate
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Judge Nita L. Stormes recommending the Court deny as moot the motion for stay and
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abeyance. (Dkt. No. 10.) Neither party has filed objections to the Magistrate Judge’s
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Report. After a thorough review of the issues and for the reasons set forth below, this
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Court ADOPTS the Magistrate Judge’s Report and DENIES AS MOOT Petitioner’s
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motion for stay and abeyance.
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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district
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judge’s duties in connection with a magistrate judge’s report and recommendation. The
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district judge must “make a de novo determination of those portions of the report to
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which objection is made,” and “may accept, reject, or modify, in whole or in part, the
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finding or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see
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also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). But “[t]he statute
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makes it clear that the district judge must review the magistrate judge’s findings and
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recommendations de novo if objection is made, but not otherwise.” United States v.
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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see
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also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that
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where no objections were filed, the district court had no obligation to review the
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magistrate judge’s report). “Neither the Constitution nor the statute requires a district
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judge to review, de novo, findings and recommendations that the parties themselves
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accept as correct.” Id. “When no objections are filed, the de novo review is waived.”
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Marshall v. Astrue, No. 08cv1735, 2010 WL 841252, at *1 (S.D. Cal. Mar. 10, 2010)
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(Lorenz, J.) (adopting report in its entirety without review because neither party filed
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objections to the report despite the opportunity to do so).
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In this case, neither party has timely filed objections to the Magistrate Judge’s
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Report. Consequently, the Court may adopt the Report on the basis that it is unopposed.
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See Reyna-Tapia, 328 F.3d at 1121. Having reviewed the Report, the Court finds that the
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3:16-cv-01451-GPC-NLS
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Report is well-reasoned and contains no clear error. The California Supreme Court
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issued a decision on July 13, 2016 summarily denying Petitioner’s habeas petition filed in
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that court. (Dkt. No. 9 at 4, Opp’n, Ex. A.) The stay and abeyance issue is now moot.
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Accordingly, the Court hereby (1) ADOPTS the Magistrate Judge’s Report in its entirety,
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and (2) DENIES AS MOOT Petitioner’s motion for stay and abeyance.
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IT IS SO ORDERED.
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Dated: September 30, 2016
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3:16-cv-01451-GPC-NLS
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