Baze v. Haynes

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION by Judge Benjamin H. Settle re 16 Report and Recommendations. **2 PAGE(S), PRINT ALL**(Travis Baze, Prisoner ID: 345757)(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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TRAVIS C. BAZE,

CASE NO. C17-5706 BHS-TLF
Petitioner,

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v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

RONALD HAYNES,

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Respondent.

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This matter comes before the Court on the Report and Recommendation (“R&R”)

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of the Honorable Theresa L. Fricke, United States Magistrate Judge (Dkt. 16), and

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Petitioner Travis Baze’s (“Baze”) objections to the R&R (Dkt. 17).

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On July 5, 2018, Judge Fricke issued the R&R recommending that the Court deny

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Baze’s motion to stay and abey because his current petition does not include an

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unexhausted claim. Dkt. 16. On July 19, 2018, Baze objected on the basis that his

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unexhausted claim is still proceeding through the state courts and submitted evidence in

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support of his position. Dkt. 17.

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The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject, or

ORDER - 1

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

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In this case, Baze fails to show any error in the R&R. While it is true that Baze is

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exhausting a double jeopardy claim in state court, Baze’s current petition does not

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include that unexhausted claim. If Baze files a motion for leave to amend his petition to

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add his unexhausted double jeopardy claim, then he may present a mixed petition for

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consideration and can then properly file a motion to stay and abey his amended mixed

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petition. At his point, however, Baze has presented a petition that includes only

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exhausted claims, and there is no reason to stay and abey that current petition. Therefore,

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the Court having considered the R&R, Petitioner’s objections, and the remaining record,

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does hereby find and order as follows:

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(1)

The R&R is ADOPTED; and

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(2)

Baze’s motion to stay and abey is DENIED without prejudice.

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Dated this 30th day of August, 2018.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 2