Brugman v. Eaton et al

Filing 10

ORDER: (1) Adopting Report and Recommendation. (2) Denying stay under Rhines and granting stay purusant to Kelly. (3) Staying case. Signed by District Judge Ruth Bermudez Montenegro on 5/19/2023. (jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MICHAEL BRUGMAN,
Petitioner,

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v.

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PATRICK EATON,

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Case No.: 3:22-cv-1350-RBM-LR
ORDER:
(1) ADOPTING REPORT AND
RECOMMENDATION
(2) DENYING STAY UNDER
RHINES AND GRANTING
STAY PURSUANT TO KELLY
(3) STAYING CASE

Respondent.

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[Docs. 6, 9]

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Petitioner, a state prisoner represented by counsel, has filed a Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254. Presently before the Court is Petitioner’s

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Application to Hold Federal Habeas Petition in Abeyance Pending Exhaustion of Issues

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in State Court (“Motion to Stay”). (Doc. 6.) Respondent filed a Response that does not

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oppose the granting of a stay, but asserts the stay should be granted under Kelly v. Small,

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315 F.3d 1063 (9th Cir. 2003) and King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) rather

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than under Rhines v. Weber, 544 U.S. 269 (2005) as requested by Petitioner. (Doc. 8.)

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Magistrate Judge Lupe Rodriguez, Jr. issued a Report and Recommendation
(“R&R”) on May 2, 2023 recommending that the Motion to Stay be denied as to a stay
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3:22-cv-1350-RBM-LR

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under Rhines and granted as to a stay under Kelly. (Doc. 9.) Any objections to the R&R

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were required to be filed no later than May 17, 2023. (Doc. 9 at 9.)

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A district court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United

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States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). The district judge must “make a de

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novo determination of those portions of the report . . . to which objection is made[,]” but

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not otherwise. § 636(b)(1); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.

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2003) (“The statute makes it clear that the district judge must review the magistrate

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judge’s findings and recommendations de novo if objection is made, but not otherwise.”)

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(emphasis in original).
Neither party has filed any objections to the Magistrate Judge’s R&R. Thus,

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having reviewed the R&R, the Court finds it thorough, well-reasoned, and contains no

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clear error. Accordingly, the Court hereby: (1) ADOPTS the Magistrate Judge’s R&R in

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its entirety (Doc. 9); (2) DENIES a stay under Rhines and GRANTS a stay under Kelly;

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and (3) STAYS this case.

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Petitioner is DIRECTED to file a status report no later than August 17, 2023 and

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every ninety (90) days thereafter that details his progress toward exhaustion. The Clerk

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of Court will administratively close this case until further Order of this Court.

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IT IS SO ORDERED.
Dated: May 19, 2023

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3:22-cv-1350-RBM-LR