UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
January 30, 2008
DARRYL G. MINNER, PETITIONER,
MIKE E. POULOS, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
On May 3, 2007, Petitioner Darryl G. Minner, a California inmate proceeding pro se, filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On August 2, 2007, Respondent filed a motion to dismiss the Petition.
Plaintiff failed to file an opposition to Respondent's motion. Accordingly, on September 27, 2007, the Honorable Nita L. Stormes, United States Magistrate Judge, issued an Order To Show Cause Why Motion to Dismiss Should Not Be Granted ("OSC"). The OSC essentially provided Petitioner with additional time to oppose the motion. Petitioner failed to respond to the OSC.
On December 27, 2007, Judge Stormes issued a Report and Recommendation ("Report"). The Report recommends that the Court find this case presents a "mixed petition," and allow Petitioner an opportunity to notify the Court about how he intends to proceed. The Report ordered that any objection was to be filed by January 8, 2008, and any reply filed by January 22, 2008. To date, no objection has been filed, nor has there been a request for additional time in which to file an objection.
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. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(holding that 28 U.S.C. 636(b)(1)(c) "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")(emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Arizona 2003) (concluding that where no objections were filed, the District Court had no obligation to review the magistrate judge's Report). This rule of law is well established within the Ninth Circuit and this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)("Of course, de novo review of a R & R is only required when an objection is made to the R & R.")(emphasis added)(citing Renya-Tapia, 328 F.3d 1121); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopted Report without review because neither party filed objections to the Report despite the opportunity to do so, "accordingly, the Court will adopt the Report and Recommendation in its entirety."); see also Nichols v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.).
The Court therefore accepts Judge Stormes' recommendation, and ADOPTS the Report in its entirety. For the reasons stated in the Report, which is incorporated herein by reference, the Court FINDS that this case involves a "mixed petition" because the Petition has exhausted and unexhausted claims. The unexhausted claims are as follows:
* Petitioner's Claim One - that the trial court violated his due process rights by failing to admit the videotape of his pre-arrest interview with police.
* Petitioner's Claim Three - that the trial court violated his fifth, sixth and fourteenth amendment rights to due process and a jury trial by instructing the jury on the statutory presumption of "willful or wanton disregard" in Vehicle Code § 2800.2.
With respect to these unexhausted claims, Petitioner must exhaust the state judicial remedies through either a direct appeal or collateral appeal. See 28 U.S.C. § 2254(b),(c). Otherwise, the Court will dismiss the Petition.
In order to avoid the Court dismissing the Petition on its own accord, Petitioner may choose one of the following options.
A. First Option: Demonstrate Exhaustion
Petitioner may file further papers with this Court to demonstrate that he has in fact exhausted the claims identified above, that the Court has determined are likely unexhausted. If Petitioner chooses this option, his papers are due no later than March 3, 2008. Respondent may file a reply by April 15, 2008.
B. Second Option: Voluntarily Dismiss the Petition
Petitioner may move to voluntarily dismiss his entire federal petition and return to state court to exhaust his unexhausted claims. Petitioner may then file a new federal petition containing only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 520-21 (1982) (stating that a petitioner who files a mixed petition may dismiss his petition to "return to state court to exhaust his claims"). If Petitioner chooses this second option, he must file a pleading with this Court no later than March 3, 2008. Respondent may file a reply by April 15, 2008.
Petitioner is cautioned that any new federal petition must be filed before expiration of the one-year statute of limitations. Ordinarily, a petitioner has one year from when his conviction became final to file his federal petition, unless he can show that statutory or equitable "tolling" applies. Duncan v. Walker, 533 U.S. 167, 176 (2001); 28 U.S.C. § 2244(d).*fn1 Filing a petition in federal court does not stop the statute of limitations from running. Id. at 181-82; Frye v. Hickman, 273 F.3d 1144, 1145-46 (9th Cir. 2001); 28 U.S.C. § 2244(d).
C. Third Option: Formally Abandon Unexhausted Claims
Petitioner may formally abandon his unexhausted claims and proceed with his exhausted ones. See Rose, 455 U.S. at 510, 520-21 (stating that a petitioner who files a mixed petition may "resubmit the habeas petition to present only exhausted claims"). If Petitioner chooses this third option, he must file a pleading with this Court no later than March 3, 2008. Respondent may file a reply by April 15, 2008.
Petitioner is cautioned that once he abandons his unexhausted claims, he may lose the ability to ever raise them in federal court. See Slack v. McDaniel, 529 U.S. 473, 488 (2000) (stating that a court's ruling on the merits of claims presented in a first § 2254 petition renders any later petition successive); see also 28 U.S.C. § 2244 (a)-(b).*fn2
D. Fourth Option: File a Motion to Stay the Federal Proceedings
Petitioner may file a motion to stay this federal proceeding while he returns to state court to exhaust his unexhausted claims. Rhines v. Webber, 544 U.S. 113 (2005); Jackson v. Roe, 425 F.3d 654 (9th Cir. 2005). If Petitioner chooses this fourth option, he must file a pleading with this Court no later than March 3, 2008. Respondent may file a reply by April 15, 2008.
For the foregoing reasons, Respondent's Motion to Dismiss [Doc. No. 6] is DENIED to the extent it seeks dismissal of the Petition at this time. However, the Court NOTIFIES PETITIONER THAT HE HAS FILED A PETITION THAT CONTAINS BOTH EXHAUSTED AND UNEXHAUSTED CLAIMS AND IT IS THEREFORE SUBJECT TO DISMISSAL. If Petitioner fails to respond to this Order by the deadlines set forth above, the Court will dismiss the Petition without prejudice.*fn3 See Rose, 455 U.S. at 522.
IT IS SO ORDERED.