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Minner v. Poulos

January 30, 2008

DARRYL G. MINNER, PETITIONER,
v.
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.

I. DISCUSSION

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 ...


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