Reeves v. ALLISON

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA DONALD LEE REEVES, III, Case No.: 3:19-cv-01886-WQH-RBB ORDER Petitioner, v. RAYMOND MADDEN Respondent.

HAYES, Judge: The matters before the Court are the Motion for Stay filed by Petitioner Donald Lee Reeves, III (ECF No. 4) and the Report and Recommendation issued by the Magistrate Judge (ECF No. 11).

The duties of the district court in connection with a report and recommendation of a magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 23 636(b). The district judge 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.” 28 U.S.C. § 636(b). The district court need not review de novo those portions of a Report and Recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“Neither the Constitution nor the [Federal Magistrates Act] requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct.”).

5 The record reflects that no objections have been filed by either party. The Court has reviewed the Report and Recommendation, the record, and the submissions of the parties.

7 IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 11) is ADOPTED in its entirety. Petitioner’s Motion for Stay is GRANTED IN PART and DENIED IN PART. Petitioner’s Motion for Stay pursuant to Kelly v. Small, 315 F.3d 1063 10 (9th Cir. 2003) (overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1149) (9th Cir. 2001)) and King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) is GRANTED.

12 Petitioner’s Motion for Stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005) is DENIED.

13 1. On February 10, 2020, Petitioner filed the First Amended Petition. (ECF No. 14 13). Petitioner has deleted the unexhausted claims (grounds seven and eight) of 15 the original Petition.

16 2. Petitioner shall file a status report every sixty days from the date of this Order to 17 update the Court on Petitioner’s progress in exhausting claims seven and eight of 18 the Petition.

19 3. Petitioner is required to lodge with the Court a file-stamped copy of each state- 20 court petition and, as soon as any state court rules on any of his petitions, a copy 21 of the ruling.

22 4. If Petitioner does not obtain relief from the state courts, the First Amended 23 Petition should be held in abeyance until thirty days after the California Supreme 24 Court denies Petitioner’s unexhausted claims. During that thirty-day period, 25 Petitioner shall file a Motion to Amend the First Amended Petition to add the 26 newly exhausted claims and shall lodge a proposed Second Amended Petition.

27 In the motion, Petitioner shall demonstrate that the claims are timely or relate 1 back to the original exhausted claims. Petitioner shall attach a copy of the 2 California Supreme Court's ruling on his state-court petition.

3 5. Petitioner is warned that the failure to strictly comply with the above 4 requirements may result in this action being dismissed for failure to prosecute or 5 comply with court orders, or the stay being lifted and the Court proceeding to 6 adjudicate only the six exhausted claims in the First Amended Petition.

7 || Dated: February 11, 2020 itt Z. A a 8 Hon. William Q. Hayes 9 United States District Court