Aguon v. Montgomery et al
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)
AUG 29 AH IQ: 12
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No.: 3:16-cv-02421-BEN-AGS
WARRENL. MONTGOMERY, Warden,
(1) ADOPTING REPORT AND
(2) GRANTING MOTION TO STAY;
(3) DENYING RESPONDENT'S
MOTION TO DISMISS
Petitioner Michael Aguon has filed a petition for writ of habeas corpus under 28
U.S.C. § 2254. (Docket No. 1). Subsequently, the Honorable Jan M. Adler issued a
notice regarding possible dismissal of Petitioner's petition for failure to exhaust state
court remedies. (Docket No. 2). Four of the five claims in Petitioner's federal petition
have not been exhausted in state court. Respondent filed a motion to dismiss for failure
to exhaust. (Docket No. 10). Petitioner responded, requesting a stay under Rhines v.
Weber, 544 U.S. 269 (2005). (Docket No. 12).
On June 12, 2017, the Honorable Andrew G. Schopler issued a Report and
Recommendation, which recommended granting Petitioner's request for a stay and
denying Respondent's motion to dismiss. (Docket No. 13). Judge Schopler found that
Petitioner is entitled to a Rhines stay. Judge Schopler set a deadline for any party to file
objections to the Report and Recommendation, but that deadline has now passed, and
neither party has filed any objections.
A district judge "may accept, reject, or modify the recommended disposition" of a
magistrate judge on a dispositive matter. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C.
§ 636(b)(l). "[T]he district judge must determine de novo any part of the [report and
recommendation] that has been properly objected to." Fed. R. Civ. P. 72(b)(3).
However, "[t]he statute makes it clear that the district judge must review the magistrate
if objection is made, but not otherwise."
judge's findings and recommendations de novo
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en bane); see also
Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). "Neither the Constitution nor
the statute requires a district judge to review, de novo, findings and recommendations
that the parties themselves accept as correct." Reyna-Tapia, 328 F.3d at 1121.
The Court has considered and agrees with the Report and Recommendation. The
Court ADOPTS the Report and Recommendation. (Docket No. 13). Petitioner's request
for a stay is GRANTED (Docket No. 12) and Respondent's motion to dismiss for failure
to exhaust is DENIED (Docket No. 10).
This action is STAYED until the California Supreme Court rules on Petitioner's
pending state habeas petition. Petitioner is required to file a status report about his state
habeas petition every two months. Petitioner is further ordered to file a final status report
within seven (7) days of any ruling on his state habeas petition.
IT IS SO ORDERED.
United States District Judge
3: l 6-cv-02421-BEN-AGS
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