Aguon v. Montgomery et al

Filing 16

ORDER: (1) Adopting 13 Report and Recommendation; (2) Granting 12 Motion to Stay; and (2) Denying Respondent's 10 Motion to Dismiss. This action is stayed until the California Supreme Court rules on Petitioner's pending state habeas petition Signed by Judge Roger T. Benitez on 8/28/2017.(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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Case No.: 3:16-cv-02421-BEN-AGS

MICHAEL AGUON,

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Petitioner,

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WARRENL. MONTGOMERY, Warden,

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ORDER:

v.

Respondent.

(1) ADOPTING REPORT AND
RECOMMENDATION;
(2) GRANTING MOTION TO STAY;
and

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(3) DENYING RESPONDENT'S
MOTION TO DISMISS

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Petitioner Michael Aguon has filed a petition for writ of habeas corpus under 28

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U.S.C. § 2254. (Docket No. 1). Subsequently, the Honorable Jan M. Adler issued a

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notice regarding possible dismissal of Petitioner's petition for failure to exhaust state

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court remedies. (Docket No. 2). Four of the five claims in Petitioner's federal petition

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have not been exhausted in state court. Respondent filed a motion to dismiss for failure

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to exhaust. (Docket No. 10). Petitioner responded, requesting a stay under Rhines v.

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Weber, 544 U.S. 269 (2005). (Docket No. 12).

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On June 12, 2017, the Honorable Andrew G. Schopler issued a Report and
Recommendation, which recommended granting Petitioner's request for a stay and

3: 16-cv-02421-BEN-AGS

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denying Respondent's motion to dismiss. (Docket No. 13). Judge Schopler found that

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Petitioner is entitled to a Rhines stay. Judge Schopler set a deadline for any party to file

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objections to the Report and Recommendation, but that deadline has now passed, and

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neither party has filed any objections.

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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)(l). "[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

if objection is made, but not otherwise."

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judge's findings and recommendations de novo

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en bane); 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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The Court has considered and agrees with the Report and Recommendation. The

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Court ADOPTS the Report and Recommendation. (Docket No. 13). Petitioner's request

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for a stay is GRANTED (Docket No. 12) and Respondent's motion to dismiss for failure

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to exhaust is DENIED (Docket No. 10).

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This action is STAYED until the California Supreme Court rules on Petitioner's

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pending state habeas petition. Petitioner is required to file a status report about his state

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habeas petition every two months. Petitioner is further ordered to file a final status report

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within seven (7) days of any ruling on his state habeas petition.

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IT IS SO ORDERED.

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Dated:

August~Ol 7

Rsi'!t:f'T. Benitez
United States District Judge

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