Keigwin v. Lizarraga

Filing 12

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENT KEIGWIN, Case No.: 3:16-cv-01451-GPC-NLS Petitioner, 12 13 v. 14 ORDER: J. LIZARRAGA, 15 (1) ADOPTING REPORT AND RECOMMENDATION; AND Respondent. (2) DENYING MOTION FOR STAY AND ABEYANCE AS MOOT 16 17 [ECF Nos. 3, 10.] 18 19 20 On June 10, 2016, Petitioner Kent Keigwin (“Petitioner”), a state inmate 21 proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus 22 (“Petition”) pursuant to 28 U.S.C. § 2254 challenging his judgment of conviction in the 23 Superior Court of California in San Diego. (Dkt. No. 1.) Petitioner also filed a motion 24 for stay and abeyance on the same day, requesting this Court to stay the Petition pending 25 a final decision by the California Supreme Court for unexhausted claims he raised in the 26 Petition. (Dkt. No. 3.) In the response to the motion for stay and abeyance, Respondent 27 J. Lizarraga (“Respondent”) noted that the California Supreme Court issued a decision on 28 July 13, 2016 denying Petitioner’s habeas petition filed in that court. (Dkt. No. 9 at 4, 1 3:16-cv-01451-GPC-NLS 1 Opp’n, Ex. A.) Respondent states that accordingly, the stay and abeyance issue is now 2 moot. 3 Before the Court is a Report and Recommendation (“Report”) issued by Magistrate 4 Judge Nita L. Stormes recommending the Court deny as moot the motion for stay and 5 abeyance. (Dkt. No. 10.) Neither party has filed objections to the Magistrate Judge’s 6 Report. After a thorough review of the issues and for the reasons set forth below, this 7 Court ADOPTS the Magistrate Judge’s Report and DENIES AS MOOT Petitioner’s 8 motion for stay and abeyance. 9 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 10 judge’s duties in connection with a magistrate judge’s report and recommendation. The 11 district judge must “make a de novo determination of those portions of the report to 12 which objection is made,” and “may accept, reject, or modify, in whole or in part, the 13 finding or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see 14 also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). But “[t]he statute 15 makes it clear that the district judge must review the magistrate judge’s findings and 16 recommendations de novo if objection is made, but not otherwise.” United States v. 17 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see 18 also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that 19 where no objections were filed, the district court had no obligation to review the 20 magistrate judge’s report). “Neither the Constitution nor the statute requires a district 21 judge to review, de novo, findings and recommendations that the parties themselves 22 accept as correct.” Id. “When no objections are filed, the de novo review is waived.” 23 Marshall v. Astrue, No. 08cv1735, 2010 WL 841252, at *1 (S.D. Cal. Mar. 10, 2010) 24 (Lorenz, J.) (adopting report in its entirety without review because neither party filed 25 objections to the report despite the opportunity to do so). 26 In this case, neither party has timely filed objections to the Magistrate Judge’s 27 Report. Consequently, the Court may adopt the Report on the basis that it is unopposed. 28 See Reyna-Tapia, 328 F.3d at 1121. Having reviewed the Report, the Court finds that the 2 3:16-cv-01451-GPC-NLS 1 Report is well-reasoned and contains no clear error. The California Supreme Court 2 issued a decision on July 13, 2016 summarily denying Petitioner’s habeas petition filed in 3 that court. (Dkt. No. 9 at 4, Opp’n, Ex. A.) The stay and abeyance issue is now moot. 4 Accordingly, the Court hereby (1) ADOPTS the Magistrate Judge’s Report in its entirety, 5 and (2) DENIES AS MOOT Petitioner’s motion for stay and abeyance. 6 IT IS SO ORDERED. 7 8 Dated: September 30, 2016 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 3:16-cv-01451-GPC-NLS

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