Carr v. McDowell

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA PAUL D. CARR, Case No. 21-cv-900-MMA (MSB) 12 Petitioner, ORDER ADOPTING REPORT AND v. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; NEIL MCDOWELL, et al., 15 Respondents. [Doc. No. 22] GRANTING MOTION TO STAY [Doc. No. 16] 20 On May 10, 2021, Petitioner Paul D. Carr, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. No. 1. The Court initially dismissed the action without prejudice because Petitioner failed to satisfy the filing fee requirement and failed to adequately allege exhaustion. See Doc. No. 3. On July 12, 2021, the Court granted Petitioner’s request to proceed in forma pauperis. Doc.

25 No. 8. However, Petitioner did not file a First Amended Petition curing the exhaustion deficiency. Instead, he filed three motions for extension of time to do so, see Doc.

27 Nos. 5, 10, 12, which the Court granted, see 8,11, 13. Upon reviewing Petitioner’s fourth motion for extension of time, see Doc. No. 16, it became clear that Petitioner wished to proceed with his original Petition. Accordingly, on December 17, 2021, the Court construed the request as a motion to stay pursuant to Rhines v. Weber, 544 U.S. 269 3 (2005), and issued a briefing schedule. See Doc. No. 17. Thereafter, Petitioner filed a memorandum of points and authorities in support of his request, see Doc. No. 18, and Respondent opposed, see Doc. No. 20. The matter was referred to United States Magistrate Judge Michael S. Berg for preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). Judge Berg has issued a detailed and well-reasoned report recommending that the Court grant Petitioner’s motion for stay and abeyance. See Doc. No. 22.

10 Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), the Court 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 [judge].” 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

15 Objections to the Report and Recommendation were due no later than July 25, 2022. See Doc. No. 22. To date, no objections have been filed.1 17 Accordingly, the Court finds that Judge Berg has issued an accurate Report and well-reasoned recommendation that the motion for stay and abeyance be granted.

19 Therefore, the Court ADOPTS the Report and Recommendation in its entirety, GRANTS Petitioner’s motion for stay and abeyance, STAYS this case pursuant to Rhines, and HOLDS the action in abeyance while Petitioner exhausts his pending state court habeas claims.

23 The Court DIRECTS Petitioner to file, every 90 days starting with the filing date of this Order, a status report that details Petitioner’s progress in the California state courts. Moreover, the Court DIRECTS Petitioner to file, within 30 days of a final On July 27, 2022, Petitioner filed a status report, updating the Court on his exhaustive efforts. See decision by the California Supreme Court, a motion requesting that the stay be lifted and || that leave to file a First Amended Petition pursuant to 28 U.S.C. § 2254 be granted.

3 || Petitioner must include a proposed First Amended Petition with that filing.

4 The Court further DIRECTS the Clerk of Court to administratively close the case || until further order of the Court.

6 IT IS SO ORDERED.

7 ||Dated: August 8, 2022 8 BMikuh lM -£ hipllr 9 HON. MICHAEL M. ANELLO 10 United States District Judge