Carr v. McDowell

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL D. CARR, Case No. 21-cv-900-MMA (MSB)

12 Petitioner, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; 14 NEIL MCDOWELL, et al., 15 Respondents. [Doc. No. 22]

16 GRANTING MOTION TO STAY 17 [Doc. No. 16] 18 19 20 On May 10, 2021, Petitioner Paul D. Carr, a state prisoner proceeding pro se, filed 21 a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. No. 1. The 22 Court initially dismissed the action without prejudice because Petitioner failed to satisfy 23 the filing fee requirement and failed to adequately allege exhaustion. See Doc. No. 3. On 24 July 12, 2021, the Court granted Petitioner’s request to proceed in forma pauperis. Doc. 25 No. 8. However, Petitioner did not file a First Amended Petition curing the exhaustion 26 deficiency. Instead, he filed three motions for extension of time to do so, see Doc. 27 Nos. 5, 10, 12, which the Court granted, see 8,11, 13. Upon reviewing Petitioner’s fourth 28 motion for extension of time, see Doc. No. 16, it became clear that Petitioner wished to 1 proceed with his original Petition. Accordingly, on December 17, 2021, the Court 2 construed the request as a motion to stay pursuant to Rhines v. Weber, 544 U.S. 269 3 (2005), and issued a briefing schedule. See Doc. No. 17. Thereafter, Petitioner filed a 4 memorandum of points and authorities in support of his request, see Doc. No. 18, and 5 Respondent opposed, see Doc. No. 20. The matter was referred to United States 6 Magistrate Judge Michael S. Berg for preparation of a Report and Recommendation 7 pursuant to 28 U.S.C. § 636(b)(1). Judge Berg has issued a detailed and well-reasoned 8 report recommending that the Court grant Petitioner’s motion for stay and abeyance. See 9 Doc. No. 22. 10 Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. 11 § 636(b)(1), the Court must “make a de novo determination of those portions of the report 12 . . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, 13 the findings or recommendations made by the magistrate [judge].” 28 U.S.C. 14 § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). 15 Objections to the Report and Recommendation were due no later than July 25, 2022. See 16 Doc. No. 22. To date, no objections have been filed.1 17 Accordingly, the Court finds that Judge Berg has issued an accurate Report and 18 well-reasoned recommendation that the motion for stay and abeyance be granted. 19 Therefore, the Court ADOPTS the Report and Recommendation in its entirety, 20 GRANTS Petitioner’s motion for stay and abeyance, STAYS this case pursuant to 21 Rhines, and HOLDS the action in abeyance while Petitioner exhausts his pending state 22 court habeas claims. 23 The Court DIRECTS Petitioner to file, every 90 days starting with the filing date 24 of this Order, a status report that details Petitioner’s progress in the California state 25 courts. Moreover, the Court DIRECTS Petitioner to file, within 30 days of a final 26

27 1 On July 27, 2022, Petitioner filed a status report, updating the Court on his exhaustive efforts. See 28 1 decision by the California Supreme Court, a motion requesting that the stay be lifted and 2 || that leave to file a First Amended Petition pursuant to 28 U.S.C. § 2254 be granted. 3 || Petitioner must include a proposed First Amended Petition with that filing. 4 The Court further DIRECTS the Clerk of Court to administratively close the case 5 || until further order of the Court. 6 IT IS SO ORDERED. 7 ||Dated: August 8, 2022 8 BMikuh lM -£ hipllr 9 HON. MICHAEL M. ANELLO 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28