Day v. Menard
Filing
23
OPINION AND ORDER Adopting 22 Magistrate Judge's Report and Recommendation Denying 16 Motion for Stay and Abeyance. Petitioner's unexhausted claims in his petition for writ of habeas corpus are DISMISSED. Petitioner's exhausted claims shall remain pending before the Magistrate Judge for further proceedings. Signed by Chief Judge Christina Reiss on 11/29/2016. (pac)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
DARRELL DAY,
Petitioner,
v.
LISA MENARD, Commissioner, Vermont
Department of Corrections,
Respondent.
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2115 NOV 30 PM 12: 22
Case No. 2:15-cv-234
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
(Docs. 16 & 22)
This matter came before the court for a review of the Magistrate Judge's
September 27, 2016 Report and Recommendation ("R & R") (Doc. 22), in which he
recommended that the court deny Petitioner Darrell Day's motion to stay his habeas
corpus proceeding filed pursuant to 28 U.S.C. § 2254 and dismiss those claims so that
Petitioner may exhaust his unexhausted ineffective assistance of counsel claims in state
court. (Doc. 16.) The Magistrate Judge recommended that Petitioner's exhausted claims
proceed in this case. Neither party has filed an objection to the R & R, and the time
period to do so has expired.
A district judge must make a de novo determination of those portions of a
magistrate judge's report and recommendation to which an objection is made. Fed. R.
Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F.3d 401, 405 (2d
Cir. 1999). The district judge may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b )(1 );
accord Cullen, 194 F.3d at 405. A district judge, however, is not required to review the
factual or legal conclusions of the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985).
In his twenty-page R & R, the Magistrate Judge carefully reviewed the factual
background, procedural history, and the nature of Petitioner's ineffective assistance of
counsel claims. Because Petitioner had filed a "mixed petition" containing claims for
which 28 U.S.C. § 2254(b)(1)(A)'s exhaustion requirements have been met and other
claims for which they had not, he properly addressed both sets of claims in his decision.
See Aparicio v. Artuz, 269 F.3d 78, 89-90 (2d Cir. 2001) (requiring that "a petitioner must
present the substance of the same federal constitutional claim[ s] that he now urges upon
the federal courts ... to the highest court in the pertinent state") (internal quotation marks
omitted) (alteration in original).
The Magistrate Judge concluded that a stay is inappropriate in this case because
Petitioner had neither demonstrated good cause for his failure to exhaust his claims in
state court, nor established that his claims were potentially meritorious. See Rhines v.
Weber, 544 U.S. 269, 277 (2005) (holding "stay and abeyance is only appropriate when
the district court determines there was good cause for the petitioner's failure to exhaust
his claims first in state court" and that the district court abuses its discretion "if it were to
grant ... a stay when [the] unexhausted claims are plainly meritless"). Accordingly, the
Magistrate Judge recommended that the court dismiss and not stay Petitioner's
unexhausted claims. The court agrees with the Magistrate Judge's recommendations and
finds them well-reasoned.
CONCLUSION
For the foregoing reasons, the court hereby ADOPTS the Magistrate Judge's
R & R (Doc. 22) as the court's Opinion and Order, DENIES Petitioner's motion for a
stay (Doc. 16), and DISMISSES Petitioner's unexhausted claims in his petition for writ
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of habeas corpus. Petitioner's exhausted claims shall remain pending before the
Magistrate Judge for further proceedings.
SO ORDERED.
Dated at Burlington, in the District ofVermont, this
2'1
7"'
day ofNovember, 2016.
~
Christina Reiss, Chief Judge
United States District Court
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