Kane v. Gastelo

7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA MICHAEL D. KANE, Case No.: 3:19-cv-01354-WQH-MDD ORDER Petitioner, v. JOSIE GASTELO, Respondent.

HAYES, Judge: The matters before the Court are the Motion to Dismiss filed by Defendant Josie Gastelo (ECF No. 7) and the Report and Recommendation issued by the Magistrate Judge (ECF No. 9).

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. § 22 636(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.”).

4 The record reflects that no objections have been filed by either party. On February ||21, 2020, Petitioner filed a Motion for Extension of Time to File an Amended Petition.

6 (ECF No. 12). Petitioner requested a 60-day extension from February 24, 2020 to file an ||amended petition. On March 2, 2020, the Magistrate Judge issued an Order denying || Petitioner’s Motion for Extension of Time to File an Amended Petition. (ECF No. 13).

9 || The Order states 10 Petitioner’s motion is premature and is DENIED without prejudice. ll Petitioner will have the opportunity to file an amended petition based upon the district judge’s ruling on the Report and Recommendation. (See ECF No 12 9).

13 Id. at 2. The Court has reviewed the Report and Recommendation, the record, and the submissions of the parties.

15 IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 9) is ADOPTED in its entirety. The Motion to Dismiss filed by Defendant Josie Gastelo (ECF No. 7) is DENIED. The Court concludes that the Petition is subject to dismissal absent a stay because it contains exhausted and unexhausted claims for relief. On or before April 24, 2020, Petitioner may file a Motion for Stay addressing the three Rhines conditions. In the alternative, on or before April 24, 2020, Petitioner may file a Motion for Stay pursuant to Kelly and an Amended Petition asserting only the exhausted claim for relief (ground two). If Petitioner fails to move for a stay under Rhines or Kelly, the Court shall dismiss Petitioner’s unexhausted claims for relief (grounds one, three, and four) and shall proceed solely as to Petitioner’s exhausted claim for relief (ground two).

29 Dated: 3/3/2020 Kio 26 bec 2. Mages 27 United States District Court