Rodriguez v. McQuidgen

Filing 24

ORDER denying 19 Motion to Stay; accepting and adopting 20 Report and Recommendation and granting 21 Motion for enlargement of time. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARIO HUERTA-RODRIGUEZ,

Petitioner,

Case No. 08-13263
HON. GEORGE CARAM STEEH

vs.

GREGORY MCQUIDGIN,
Respondent.
__________________________________/
ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION [Dkt.#20],
GRANTING PETITIONER’S MOTION FOR ENLARGEMENT OF TIME [#21] AND
DENYING PETITIONER’S MOTION FOR STAY [#19]
I. INTRODUCTION
On September 8, 2011, Magistrate Judge Paul Komives filed a report and
recommendation recommending that the court deny petitioner’s motion for stay. On
October 20, 2011, petitioner filed a response to the magistrate judge’s report and
recommendation, which the court will construe as petitioner’s objection to the report and
recommendation.1
The instant matter arises out of petitioner’s July 1999 conviction for assault and
various firearms offenses. This court denied petitioner’s application for a writ of habeas

1

On October 13, 2011, petitioner filed a motion for enlargement of time to file his
response to the magistrate judge’s report and recommendation. The court GRANTS
petitioner’s motion for enlargement of time.
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corpus as untimely under 28 U.S.C. § 2244(d) and denied petitioner a certificate of
appealability on August 25, 2009. The United States Court of Appeals for the Sixth Circuit
denied petitioner’s request for a certificate of appealability on August 3, 2010. It appears
that petitioner’s present motion to stay requests that this court stay proceedings relevant
to his federal habeas corpus petition in the United States Supreme Court pursuant to
Supreme Court Rule 23.3.
II. ANALYSIS
A. Standard of Review
The standard of review to be employed by the court when examining a report and
recommendation is set forth in 28 U.S.C. § 636. This court “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). This court “may
accept, reject or modify, in whole or in part, the findings or recommendations made by the
magistrate.” Id.
B. Petitioner’s Motion to Stay
The magistrate judge is correct that Rule 23.3 does not authorize a district judge to
issue a stay. Further, Federal Rule of Civil Procedure 62 is inapplicable as there is no
judgment to “execute” here, nor has petitioner filed a post-judgment motion necessitating
a stay to preserve the status quo. See Fed. R. Civ. P. 62. A review of petitioner’s
response, construed as his objection to the report and recommendation, confirms that
petitioner’s motion to stay is actually a motion for reconsideration of this court’s August 25,
2009 order and judgment denying his application for a writ of habeas corpus. The
magistrate judge correctly concluded that even if petitioner had properly moved under Rule
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60 for relief from judgment, he has not presented any arguments that have not already
been considered and rejected by this court. See Fed. R. Civ. P. 60. Petitioner’s motion for
stay has no merit and is therefore denied.
III. CONCLUSION
For the reasons set forth above, Magistrate Judge Paul Komives’s September 8.
2011 report and recommendation is ACCEPTED and ADOPTED as this court’s conclusions
of law.
Petitioner’s motion for enlargement of time to file response is GRANTED.
Petitioner’s motion to stay is DENIED.
SO ORDERED.
Dated: December 19, 2011
S/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
December 19, 2011, by electronic and/or ordinary mail and
also to Mario Huerta-Rodriguez at Kinross Correctional
Facility, 16770 S. Watertower Drive, Kincheloe, MI 49788.
S/Josephine Chaffee
Deputy Clerk

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