Simpson v. Moore

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA DIONTE JAMAL SIMPSON, Case No.: 21cv1763-CAB-NLS 12 Petitioner, ORDER ADOPTING REPORT AND v. RECOMMENDATION [Doc. No. 14] AND GRANTING MOTION FOR MOORE, STAY AND ABEYANCE [Doc. No. 5] 15 Respondent.

17 On October 12, 2021, Petitioner Dionte Jamal Simpson (“Petitioner”), a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, [Doc. No. 1.] On January 24, 2022, Petitioner filed a Motion for Stay and Abeyance. [Doc. No. 5.] On June 28, 2022, Magistrate Judge Nita L. Stormes issued a Report and Recommendation (“Report”), recommending that the Court grant the motion for stay and abeyance pursuant to King v. Ryan, 564 F.3d 1133, 1141-42 (9th Cir. 2009)(“King”). [Doc. No. 14.] The Report also ordered that any objections were to be filed by July 5, 2022. [Report at 3.] To date, no objection has been filed, nor has there been a request for additional time in which to file an objection.

26 A district court’s duties concerning a magistrate judge’s report and recommendation and a respondent’s objections thereto are set forth in Rule 72(b) of the Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are || filed, the district court is not required to review the magistrate judge’s report and ||recommendation. The Court reviews de novo those portions of the Report and || Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may || “accept, reject, or modify, in whole or in part, the findings or recommendations made by ||the magistrate judge.” Jd. However, “[t]he statute makes it clear that the district judge || must review the magistrate judge's findings and recommendations de novo if objection is ||made, but not otherwise.” United States v. Reyna—Tapia, 328 F.3d 1114, 1121 (9th || Cir. 2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the || parties themselves accept as correct.” Id. 11 Here, neither party has timely filed objections to the Report. Having reviewed it, || the Court finds that it is thorough, well-reasoned, and contains no clear error.

13 || Accordingly, the Court HEREBY ADOPTS the Report [Doc. No. 14] in its entirety. For || the reasons stated in the Report, the Court HEREBY ORDERS: 15 1. Petitioner’s motion for stay and abeyance [Doc. No. 5] is GRANTED pursuant || to King.

17 2. By October 8, 2022, and for every three months thereafter (that is, by January 8, || 2023; April 8, 2023; July 8, 2023; and so on), Petitioner must file a status report with this || Court that details his progress in exhausting his unexhausted claims in the state courts.

20 3. Within 14 days of the state court’s decision resolving his claims, Petitioner must || file a motion requesting that the stay be lifted. Once Petitioner moves to lift the stay, || Petitioner’s obligation to file these status reports will end.

23 IT IS SO ORDERED.

24 Dated: July 8, 2022 € Z Hon. Cathy Ann Bencivengo 26 United States District Judge