Morrison v. Lizarraga

Opinion

1 2 3 4 5 6 7 10 RYAN MICHAEL MORRISON, Case No.: 18cv1857-MMA (JLB) 11 ORDER ADOPTING REPORT AND 12 Petitioner, RECOMMENDATION OF UNITED v. STATES MAGISTRATE JUDGE; 13 JOE A. LIZARRAGA, Warden, et al., [Doc. No. 18] 14 DENYING RESPONDENT’S 15 Respondents. MOTION TO DISMISS;

16 [Doc. No. 12]

17 GRANTING PETITIONER’S RENEWED REQUEST FOR A STAY

19 20 21 Petitioner Ryan Michael Morrison (“Petitioner”), a state prisoner proceeding pro 22 se, filed a petition for writ of habeas corpus (the “Petition”) pursuant to 28 U.S.C. § 2254. 23 See Doc. No. 1. Two months later, Petitioner filed a motion for stay and abeyance 24 pursuant to Rhines v. Weber, 544 U.S. 269 (2005). See Doc. No. 4. The Court adopted 25 the report and recommendation of the assigned magistrate judge and denied Petitioner’s 26 motion for stay and abeyance without prejudice. See Doc. No. 7. Respondent Joe A. 27 Lizarraga (“Respondent”), Warden of Mule Creek State Prison, now moves to dismiss the 28 Petition on the grounds that Petitioner failed to exhaust his state court remedies with 1 respect to all claims in the petition. See Doc. No. 12. Petitioner filed an opposition 2 wherein he renews his request for a stay and abeyance under Rhines. See Doc. No. 17. 3 The matter was referred to United States Magistrate Judge Burkhardt for 4 preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). Judge 5 Burkhardt has issued a detailed and well-reasoned report recommending that the Court 6 deny Respondent’s motion to dismiss and grant Petitioner’s renewed request for a Rhines 7 stay. See Doc. No. 18. 8 Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 9 636(b)(1), the Court must “make a de novo determination of those portions of the report . 10 . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, 11 the findings or recommendations made by the magistrate [judge].” 28 U.S.C. § 12 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). 13 Objections to the Report and Recommendation were due no later than January 20, 2020. 14 See Doc. No. 18 at 11. To date, no objections have been filed.1 15 Accordingly, the Court finds that Judge Burkhardt has issued an accurate Report 16 and well-reasoned recommendation that Respondent’s motion to dismiss be denied and 17 that Petitioner’s renewed request for a stay and abeyance be granted. The Court hereby 18 ORDERS as follows: 19 1. The Court ADOPTS the Report and Recommendation in its entirety; 20 2. The Court DENIES Respondent’s motion to dismiss; 21 3. The Court GRANTS Petitioner’s renewed request for a Rhines stay; 22 4. This action is stayed pending exhaustion of Claim Two for ineffective assistance of 23 trial counsel; 24 5. Petitioner must file, every 90 days starting with the filing date of this Order, a 25 status report that details Petitioner’s progress in the California state courts; 26

27 1 The Clerk of Court served Petitioner with a copy of the Report and Recommendation via U.S. 28 1 6. Petitioner must file, within 30 days of a final decision by the California Supreme 2 Court, a motion requesting that the stay be lifted and that leave to file a First 3 Amended Petition pursuant to 28 U.S.C. § 2254 be granted. Petitioner must 4 include a proposed First Amended Petition with that filing; and 5 7. The Clerk of Court is instructed to administratively close the case until further 6 order of the Court. 7 9 10 || Dated: February 5, 2020 ll BMaidel M —{ hillr 12 HON. MICHAEL M. ANELLO B United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28