Sarmiento v. Pfeiffer et al

Filing 15

ORDER: The Report and Recommendation (ECF No. 14 ) is ADOPTED in its entirety. Petitioner's Motion for Stay is GRANTED IN PART and DENIED IN PART. Petitioner's Motion for Stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), over ruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007) is GRANTED. Petitioner's Motion for Stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005) is DENIED. Signed by Judge William Q. Hayes on 2/16/2021.(All non-registered users served via U.S. Mail Service)(ag)

Case 3:20-cv-00930-WQH-AGS Document 15 Filed 02/16/21 PageID.311 Page 1 of 2

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSE ELIAS SARMIENTO,

Case No.: 3:20-cv-00930-WQH-AGS

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ORDER

Petitioner,
v.
CHRISTIAN PFEIFFER and
XAVIER BECERRA,

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Respondents.

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HAYES, Judge:

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The matter before the Court is the Motion for Stay and Abeyance filed by Petitioner

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Jose Elias Sarmiento (ECF No. 4) and the Report and Recommendation issued by the

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Magistrate Judge (ECF No. 14).

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The duties of the district court in connection with a report and recommendation of a

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magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. §

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636(b). The district judge must “make a de novo determination of those portions of the

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report . . . to which objection is made” and “may accept, reject, or modify, in whole or in

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part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b).

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The district court need not review de novo those portions of a Report and Recommendation

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to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir.
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3:20-cv-00930-WQH-AGS

Case 3:20-cv-00930-WQH-AGS Document 15 Filed 02/16/21 PageID.312 Page 2 of 2

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2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“Neither the

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Constitution nor the [Federal Magistrates Act] requires a district judge to review, de novo,

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findings and recommendations that the parties themselves accept as correct.”).

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The record reflects that no objections have been filed by either party. The Court has

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reviewed the Report and Recommendation, the record, and the submissions of the parties.

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IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 14) is

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ADOPTED in its entirety. Petitioner’s Motion for Stay is GRANTED IN PART and

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DENIED IN PART. Petitioner’s Motion for Stay pursuant to Kelly v. Small, 315 F.3d 1063

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(9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir.

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2007) is GRANTED. Petitioner’s Motion for Stay pursuant to Rhines v. Weber, 544 U.S.

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269 (2005) is DENIED.

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1. Within 30 days of the entry of this Order, Petitioner shall file a Notice of

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Dismissal to dismiss without prejudice his unexhausted claims (grounds two and

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three of his First Amended Petition). If Petitioner fails to timely withdraw his

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unexhausted claims, the Court will dismiss the entire mixed Petition.

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2. The parties shall jointly file periodic status reports summarizing Petitioner’s

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efforts to exhaust his dismissed claims. The first report shall be filed on or before

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March 1, 2021 and subsequent reports shall be filed every three months thereafter

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(e.g., June 1, 2021, September 1, 2021, etc.).

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3. Within 45 days of the state court’s decision resolving Petitioner’s claims,

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Petitioner shall file a motion requesting that the stay be lifted and that he be

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granted leave to file an amended petition. The request shall include Petitioner’s

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proposed amended petition and demonstrate that the new claims are timely

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or relate back to the pending Petition.

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Dated: February 16, 2021

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3:20-cv-00930-WQH-AGS