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Acosta v. Giurbino

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 14, 2007

NELSON R. ACOSTA, PETITIONER,
v.
G.J. GIURBINO (WARDEN), RESPONDENT.

The opinion of the court was delivered by: William Q. Hayes United States District Judge

ORDER

HAYES, Judge

The matter before the Court is the Report and Recommendation (Doc. # 10) of United States Magistrate Judge Jan M. Adler, recommending that the Court deny Petitioner Nelson R. Acosta's "Motion for District Court to Hold Direct Appeal in Abeyance while Unexhausted Claims are Litigated in State Court" (Doc. # 6).

Background

On October 12, 2006, Petitioner filed nunc pro tunc a First Amended Petition for Writ of Habeas Corpus ("FAP") (Doc. # 1). On May 25, 2007, Petitioner filed the "Motion for District Court to Hold Direct Appeal in Abeyance while Unexhausted Claims are Litigated in State Court" ("Motion"). In the Motion, Petitioner seeks to stay the proceedings in this Court while he exhausts state remedies as to additional claims not presented in the FAP.

On September 21, 2007, the Magistrate Judge issued a Report and Recommendation recommending that this Court deny the Motion. The Magistrate Judge concluded that Petitioner failed to show good cause for his failure to exhaust his additional claims in state court prior to filing the FAP in this Court, that his additional unexhausted claims are potentially meritorious, and that he did not engage in unreasonable delay in bringing his additional claims. R&R, p. 4-5.

Neither party filed objections to the Report and Recommendation.

Standard of Review

The duties of a district court in connection with a magistrate judge's Report and Recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When neither party objects to a Report and Recommendation, a district court need not review de novo the Report and Recommendation. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). A district court may nevertheless "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 Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006).

Ruling of the Court

After reviewing the Report and Recommendation in its entirety, the Court finds that the Magistrate Judge correctly concluded that Petitioner failed to show good cause for his failure to exhaust the additional claims in state court, that his unexhausted claims are potentially meritorious, and that the delay in bringing his additional claims was reasonable. See R&R, p. 4-5. The Court adopts the Report and Recommendation in its entirety.

IT IS HEREBY ORDERED that all portions of the Report and Recommendation (Doc.# 10) are ADOPTED and the Motion for District Court to Hold Direct Appeal in Abeyance while Unexhausted Claims are Litigated in State Court is DENIED.

20071114

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