Wheeler v. Shinn

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 DeWayne Brian Wheeler, No. CV-19-04897-PHX-DJH (DMF)

10 Petitioner, ORDER

11 v.

12 Attorney General of the State of Arizona, et al., 13 Respondents. 14 15 Before the Court is Petitioner’s unopposed Motion for Stay and Abeyance 16 (“Motion to Stay”) (Doc. 4) and the Report and Recommendation (“R&R”) issued by 17 Magistrate Judge Deborah M. Fine on December 10, 2019 (Doc. 13). On December 16, 18 2019, Petitioner filed a “Motion to Lift or Disregard Stay and Abeyance” (Doc. 14), 19 which Judge Fine construed as an objection to the R&R’s recommendation that the stay 20 be granted pending issuance of the mandate regarding Petitioner’s post-conviction review 21 proceedings (Doc. 15). 22 I. Background 23 In his Motion to Stay, Petitioner asks that his Petition be stayed until he has 24 exhausted the basis for the claims advanced in Ground Two of his pro se Petition for Writ 25 of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) (Doc. 4). Respondents do 26 not oppose Petitioner’s requested stay. (Doc. 12). In her R&R, Magistrate Judge Fine 27 finds that good cause exists to stay Petitioner’s case, and recommends, among other 28 things, that “within thirty days of the [state court] mandate issuing, Respondents and 1 Petitioner shall file a new report regarding the status of the state court proceedings.” 2 (Doc. 13 at 5). 3 Six days after she issued her R&R, and before this Court could review the R&R 4 recommending the stay, Petitioner sought to lift or disregard the stay. (Doc. 14 at 3-4). 5 Magistrate Judge Fine construed Petitioner’s filing as an Objection to the R&R. 6 (Doc. 15). 7 II. Discussion 8 The district judge “shall make a de novo determination of those portions of the 9 report or specified proposed findings or recommendations to which objection is made.” 10 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must 11 determine de novo any part of the magistrate judge’s disposition that has been properly 12 objected to.”); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (same). The judge “may 13 accept, reject, or modify, in whole or in part, the findings or recommendations made by 14 the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). 15 Petitioner does not make a traditional objection to a fact or finding in the R&R, 16 but appears to be alerting the Court to the fact that his PCR claims have now been 17 exhausted in the Arizona courts and thus the requested stay is no longer necessary and/or 18 can be lifted.1 Magistrate Judge Fine construed Petitioner’s notice as an objection to her 19 recommendation that the stay be granted only “pending the issuance of the mandate 20 regarding Petitioner’s PCR proceedings.” (Doc. 13 at 5). As she notes in her Order, 21 though Petitioner’s Objection references the Arizona Appeals Court’s decision on his 22 PCR proceedings, he does not reference a mandate, and Respondents have been silent on 23 the issuance of the same. (Doc. 15). The Court appreciates Petitioner’s efforts to inform 24 the Court as to the status of his PCR proceedings, but understands the prudence of 25 requiring evidence of a mandate before lifting a warranted stay. The Court will therefore 26 overrule Petitioner’s Objection and adopt the R&R, but with the additional requirement 27 that if a mandate has already issued in Petitioner’s PCR proceedings, that Petitioner and

28 1 The Court notes that on December 16, 2019, at the time of Petitioner’s filing, there was no stay to lift, as this Court had yet to adopt Magistrate Judge Fine’s R&R. Respondents file a report within 14 days of this Order so informing the Court. 2 Accordingly, 3 IT IS ORDERED that Magistrate Judge Fine’s R&R (Doc. 13) is ACCEPTED 4|| AND ADOPTED as the Order of this Court. Petitioner’s Motion for Stay (Doc. 4) is 5|| GRANTED. 6 IT IS FURTHER ORDERED that as recommended in the R&R, Petitioner and 7\| Respondents must file a report informing the Court of the status of the state court 8 || proceedings no later than 30 days after the date of service of this Order adopting this Report and Recommendation, and every 90 days thereafter. Petitioner and Respondents || must also file a report informing this Court within 30 days after the mandate is issued in 11 || Petitioner’s PCR proceedings, or if 30 days have passed since its issuance, within 14 days of this Order. 13 Dated this 10th day of March, 2020. 14 15 . Jl {Oo 16 an Diang 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28

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