Bates v. The People of the State of California

Opinion

GILBERT JOSEPH BATES, Case No.: 18cv1563-MMA (MSB)

Petitioner, ORDER ADOPTING REPORT AND v. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE;

Respondent. [Doc. No. 17]

DENYING RESPONDENT’S MOTION TO DISMISS WITHOUT PREJUDICE

[Doc. No. 12]

Petitioner Gilbert Joseph Bates (“Petitioner”), a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. See Doc. No. 1. On July 9, 2018, Petitioner filed his First Amended Petition for Writ of Habeas Corpus (“Petition”). See Doc. No. 5. Respondent filed a motion to dismiss the Petition, to which Petitioner filed an opposition. See Doc. Nos. 12, 16. The matter was referred to United States Magistrate Judge Michael S. Berg for preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule HC.2. Judge Berg has issued a thorough Report recommending that the Court find that the Petition contains both exhausted and unexhausted claims and that the Court deny Respondent’s motion to dismiss without prejudice. See Doc. No. 17. Judge Berg further identified four options for Petitioner to choose from to avoid dismissal of his Petition. Specifically, Petitioner can: (1) demonstrate exhaustion; (2) voluntarily dismiss the Petition; (3) formally abandon his unexhausted claims; or (4) file a motion to stay the federal proceedings. See id. Judge Berg recommended that Petitioner be sent an Order specifying his options with regard to a mixed petition and be given thirty days from the Undersigned’s final order on the Report and Recommendation to inform the Court of how he intends to proceed. See id. at 10. Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), the Court must “make a de novo determination of those portions of the report . . . to which objection is made,” and “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); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). Objections to the Report and Recommendation were due no later than August 9, 2019. To date, no objections have been filed.1 Accordingly, the Court finds that Judge Berg has issued an accurate Report and well-reasoned recommendation that the Court: (1) find that the Petition contains both exhausted and unexhausted claims; and (2) deny Respondent’s motion to dismiss without prejudice. The Court ADOPTS the Report and Recommendation, finds that the Petition contains both exhausted and unexhausted claims, and DENIES Respondent’s motion to dismiss without prejudice. On August 7, 2019, Petitioner filed a document entitled, “Notice to Withdraw Pending Completion of Unexhausted Claims, But Remain in Federal Court Pending Completion.” See Doc. No. 21. In his notice, Petitioner indicates that he “will withdraw 27 1 The Clerk of Court served Petitioner with a copy of the Report and Recommendation via U.S. from the Southern District to go back down to the lower court to exhaust his unexhausted claims.” Id. at 1. Petitioner cites page 9 of Judge Berg’s Report and Recommendation and asserts that “his claims will remain in federal court during the pendency of the state court’s collateral review of [his] claims.” Id. The Court construes the notice as Petitioner’s election to pursue the fourth option: to stay the federal proceedings. Because Petitioner is aware of his options and has already made an election as to how he would like to proceed, the Court need not notify Petitioner of his options at this time. Dated: August 16, 2019 United States District Judge