Martin v. Cates

Filing 7

ORDER Adopting Report and Recommendation [Doc. No. 6 ] and Granting Petitioner's Motion for Stay and Abeyance [Doc. No. 2 ]. Signed by Judge Cathy Ann Bencivengo on 1/17/2023. (anh)

Case 3:22-cv-01563-CAB-DDL Document 7 Filed 01/17/23 PageID.89 Page 1 of 3

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

EDWIN LAMAR MARTIN,
Petitioner,

12
13

v.

14

BRIAN CATES, Warden,

15

Case No.: 22cv1563-CAB-DDL
ORDER ADOPTING REPORT AND
RECOMMENDATION [Doc. No. 6]
AND GRANTING PETITIONER’S
MOTION FOR STAY AND
ABEYANCE [Doc. No. 2]

Respondent.

16
17

On October 11, 2022, Petitioner Edwin Lamar Martin (“Petitioner”), a state

18

prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas

19

Corpus pursuant to 28 U.S.C. § 2254, [Doc. No. 1.] On October 11, 2022, Petitioner also

20

filed a motion for stay and abeyance. [Doc. No. 2.]

21

On December 29, 2022, Magistrate Judge David L. Leshner issued a Report and

22

Recommendation (“Report”), recommending that the Court GRANT Petitioner’s motion

23

for stay and abeyance. [Doc. No. 6.] The Report also ordered that any objections were to

24

be filed by January 12, 2023. [Report at 7.] To date, no objection has been filed, nor has

25

there been a request for additional time in which to file an objection.

26

A district court’s duties concerning a magistrate judge’s report and

27

recommendation and a respondent’s objections thereto are set forth in Rule 72(b) of the

28

Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are
1
22cv1563-CAB-DDL

Case 3:22-cv-01563-CAB-DDL Document 7 Filed 01/17/23 PageID.90 Page 2 of 3

1

filed, the district court is not required to review the magistrate judge’s report and

2

recommendation. The Court reviews de novo those portions of the Report and

3

Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may

4

“accept, reject, or modify, in whole or in part, the findings or recommendations made by

5

the magistrate judge.” Id. However, “[t]he statute makes it clear that the district judge

6

must review the magistrate judge's findings and recommendations de novo if objection is

7

made, but not otherwise.” United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th

8

Cir.2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute

9

requires a district judge to review, de novo, findings and recommendations that the

10

parties themselves accept as correct.” Id.

11

Here, neither party has timely filed objections to the Report. Having reviewed it,

12

the Court finds that it is thorough, well-reasoned, and contains no clear error.

13

Accordingly, the Court HEREBY ADOPTS Magistrate Judge Leshner’s Report and

14

Recommendation [Doc. No. 6] in its entirety. For the reasons stated in the Report, which

15

is incorporated herein by reference, the Court GRANTS the motion for stay and

16

abeyance as follows:

17

1. Petitioner’s motion for a Rhines1 stay is GRANTED.

18

2. By April 18, 2023, and for every three months thereafter (that is, by July 18,

19

2023; October 17, 2023; and so on), Petitioner must file a status report with this Court

20

that details his progress in exhausting his unexhausted claims in the state courts.
3. Within thirty days of the state court’s decision resolving his claims, Petitioner

21
22

must file a motion requesting that the stay be lifted. Once Petitioner moves to lift the stay,

23

/////

24

/////

25

/////

26
27
28

1

Rhines v. Weber, 544 U.S. 269, 277 (2005).
2
22cv1563-CAB-DDL

Case 3:22-cv-01563-CAB-DDL Document 7 Filed 01/17/23 PageID.91 Page 3 of 3

1
2
3

Petitioner’s obligation to file these status reports will end.
IT IS SO ORDERED.
Dated: January 17, 2023

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
22cv1563-CAB-DDL