Brugman v. Eaton

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL BRUGMAN, Case No.: 3:22-cv-1350-RBM-LR

12 Petitioner, ORDER: 13 v. (1) ADOPTING REPORT AND RECOMMENDATION 14 PATRICK EATON, (2) DENYING STAY UNDER 15 Respondent. RHINES AND GRANTING STAY PURSUANT TO KELLY 16 (3) STAYING CASE 17 [Docs. 6, 9] 18 19 20 Petitioner, a state prisoner represented by counsel, has filed a Petition for Writ of 21 Habeas Corpus pursuant to 28 U.S.C. § 2254. Presently before the Court is Petitioner’s 22 Application to Hold Federal Habeas Petition in Abeyance Pending Exhaustion of Issues 23 in State Court (“Motion to Stay”). (Doc. 6.) Respondent filed a Response that does not 24 oppose the granting of a stay, but asserts the stay should be granted under Kelly v. Small, 25 315 F.3d 1063 (9th Cir. 2003) and King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) rather 26 than under Rhines v. Weber, 544 U.S. 269 (2005) as requested by Petitioner. (Doc. 8.) 27 Magistrate Judge Lupe Rodriguez, Jr. issued a Report and Recommendation 28 (“R&R”) on May 2, 2023 recommending that the Motion to Stay be denied as to a stay 1 |}under Rhines and granted as to a stay under Kelly. (Doc. 9.) Any objections to the R&R 2 || were required to be filed no later than May 17, 2023. (Doc. 9 at 9.) 3 A district court “may accept, reject, or modify, in whole or in part, the findings or 4 ||recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United 5 || States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). The district judge must “make a de 6 determination of those portions of the report . . . to which objection 1s made[,]” but 7 ||not otherwise. § 636(b)(1); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 8 2003) (“The statute makes it clear that the district judge must review the magistrate 9 || judge’s findings and recommendations de novo if objection is made, but not otherwise.’’) 10 (emphasis in original). 11 Neither party has filed any objections to the Magistrate Judge’s R&R. Thus, 12 || having reviewed the R&R, the Court finds it thorough, well-reasoned, and contains no 13 error. Accordingly, the Court hereby: (1) ADOPTS the Magistrate Judge’s R&R in 14 entirety (Doc. 9); (2) DENIES a stay under Rhines and GRANTS a stay under Kelly; 15 (3) STAYS this case. 16 Petitioner is DIRECTED to file a status report no later than August 17, 2023 and 17 || every ninety (90) days thereafter that details his progress toward exhaustion. The Clerk 18 || of Court will administratively close this case until further Order of this Court. 19 IT IS SO ORDERED. 20 || Dated: May 19, 2023 FR Borrudy Moidtiryy D_ 3 HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28