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Felder v. Hickman

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 12, 2007

CHARLES EARL FELDER, PETITIONER,
v.
RODERICK Q. HICKMAN, SECRETARY OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITIONER'S MOTION TO STAY AND ABEY

Petitioner Charles Earl Felder, proceeding in pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The case was referred to United States Magistrate Judge Cathy Ann Bencivengo for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3.

In his first amended petition, Petitioner asserted three claims. Respondent filed a response, arguing that Petitioner failed to exhaust one of his claims. Petitioner subsequently filed a Motion to Hold Proceedings on Petition in Abeyance, seeking to stay this action while he returned to state court to exhaust the unexhausted claim.

On February 1, 2007, the Magistrate Judge issued a Report and Recommendation, recommending Petitioner's motion be denied without prejudice. The recommendation is based on the finding that a stay and abeyance of the proceedings is not necessary because the claim was exhausted. Neither party filed any objections to the Report and Recommendation.

A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). Section 636(b)(1) does not require some lesser review by the district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The "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 the original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review). In the absence of any objections, the court ADOPTS the Report and Recommendation and DENIES WITHOUT PREJUDICE Petitioner's Motion to Hold Proceedings on Petition in Abeyance.

IT IS SO ORDERED.

20070312

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