The opinion of the court was delivered by: Hon. John A. Houston United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITIONER'S MOTION TO STAY [Doc. No. 8]
Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court is Petitioner's motion to stay and the report and recommendation ("Report") filed by the Honorable Jan M. Adler, United States Judge, recommending the motion to stay be denied. After careful consideration of the pleadings and relevant exhibits submitted by the parties, and for the reasons set forth below, this Court ADOPTS the magistrate judge's Report in its entirety and DENIES the motion to stay.
Petitioner was convicted, on October 21, 2003, of one count of first degree murder with personal use of a firearm and assault with a deadly weapon. Petition at 1. The jury also found the gang enhancements true. Id.; Court of Appeal Decision, Exh. A at 2. The trial court imposed a term of 25 years to life for murder, 25 years to life for personal discharge of a firearm causing death, a 4 year term for assault and a 5 year gang enhancement. See Exh. A at 2. Petitioner appealed his conviction to the Court of Appeal, Fourth Appellate District, State of California, asserting eleven grounds for relief. See Exh. B. The Court of Appeal affirmed the conviction on May 4, 2005. Petitioner filed a petition for review with the California Supreme Court asserting four claims for relief. See Exh. C.
Petitioner filed the instant petition for writ of habeas corpus in this Court on January 3, 2007, along with a motion to proceed in forma pauperis. Plaintiff alleges five grounds for relief. In his fifth claim, Petitioner alleges he was denied the right to confront and cross-examine witnesses and due process when the trial court allowed hearsay testimony in violation of his Sixth and Fourteenth Amendment rights. See Petition at 10. He fails to allege he exhausted the fifth claim for relief. Judge Adler granted the motion to proceed in forma pauperis and notified Petitioner of possible dismissal of his petition for failure to exhaust a claim. See Doc. No. 3. Petitioner was given four options to proceed with his petition. On April 18, 2007, Plaintiff filed the pending motion to stay. See Doc. No. 8. Respondent filed an opposition on May 18, 2007. Petitioner did not file a reply. Pursuant to 28 U.S.C. § 636(b)(1), Judge Adler submitted a report and recommendation ("Report") to this Court recommending Petitioner's motion to stay be denied.
Objections to the Report were due by August 31, 2007. Petitioner filed a document entitled "Objections to the Report and Recommendations" on October 10, 2007. See Doc. No. 14. However, a review of the document demonstrates there are no objections to the Report. Plaintiff specifically states he has "no objections to the Court's descision [sic] to deny [his] motion to request to 'stay federal proceedings." Doc. No. 14 at 1. He further states he will start over and refile a new petition for writ of habeas corpus. Id.
The district court's role in reviewing a magistrate judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall 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]." Id. When no objections are filed, the Court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law.Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989) (citingBritt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).
Although Petitioner filed a document entitled objections to the report and recommendation, Petitioner does not object to the Report. Thus, the Court received no objections or requests for extensions of time to file objections. As such, the Court assumes the correctness of the magistrate judge's factual findings and adopts them in full. The Court has conducted a de novo review, independently reviewing the Report and all relevant papers submitted by both parties, and finds that the Report provides a cogent analysis of the issued presented in the motion. Specifically, this Court agrees that Petitioner failed to show good cause for his failure to exhaust as required. See Rhines v. Weber, 544 U.S. 269, 275 (2005). In fact, Petitioner provides no explanation for failing to exhaust his fifth claim. Therefore, this Court adopts the magistrate judge's findings and conclusions presented in the report.
For the reasons set forth above, IT IS HEREBY ORDERED that:
1. The findings and conclusions of the magistrate judge presented in the Report are ...