The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER: 1) ADOPTING MAGISTRATE JUDGE BATTAGLIA'S REPORT AND RECOMMENDATION; AND 2) DENYING PETITIONER'S MOTION TO STAY
Eugene Orange ("Petitioner"), a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28. U.S.C. § 2254. Petitioner failed to allege exhaustion of ground four of the petition and now seeks to stay-and-abey the petition and exhaust his unexhausted claim in state court. Before the Court is Magistrate Judge Anthony J. Battaglia's Report and Recommendation ("R&R") recommending that the Court deny Petitioner's motion to stay. For the reasons set forth below, this Court ADOPTS the R&R and DENIES Petitioner's motion to stay.
Petitioner is a California State Prisoner serving a sentence of 111 years to life in State Prison for (1) first degree murder, and (2) acquiring a credit card with intent to defraud.
Petitioner has filed a petition for writ of habeas corpus in this Court raising four grounds for relief. (See Pet'r's Motion to Stay (Pet'r's Mot.) at 1.) Petitioner filed and exhausted the first three claims of his petition for writ of habeas corpus in state court. His fourth claim, ineffective assistance of appellate counsel, was not raised in state court. (See Pet'r's Mot.)
On April 23, 2007, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, which was dismissed by this Court on May 24, 2007, for failure to pay the filing fee. The Court also noted in its May 24, 2007 order, that the Petitioner failed to allege exhaustion of ground four of the Petition and advised Petitioner of the four options available to him.*fn1 On June 1, 2007, this Court granted Petitioner's application to proceed in forma pauperis, but stated that the action remained dismissed without prejudice while Petitioner selected among the four options identified by the Court in its May 24, 2007 order. On June 14, 2007, Petitioner filed a motion to stay the petition. On September 25, 2007, Respondent filed an opposition to the motion and on November 7, 2007, Petitioner filed a status report to inform the Court of his progress in exhausting ground four in state court.
I. State Prisoner Habeas Corpus Standard
A federal court's duty in examining a state prisoner's habeas petition is governed by the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254. Under 28 U.S.C. § 2254(a) a federal court may grant a habeas petition if the applicant is in custody "in violation of the Constitution of other laws or treaties of the United States." Pursuant to the AEDPA, a federal court may grant habeas corpus relief from a state court judgment only if the adjudication was (1) contrary to, or involved an unreasonable application of, clearly established federal law, or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d); Early v Packer, 537 U.S. 3, 7-8 (2002).
A federal court may grant relief under the "contrary to" clause if (1) the state court applied a rule different from the governing law set forth in Supreme Court cases, or (2) if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Lockyer v. Andrade, 538 U.S. 63, 73 (2003). The court may grant relief under the "unreasonable application" clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular
Id. at 76. Additionally, the state court's factual determinations are presumed correct, and the petitioner carries the burden of rebutting this presumption with "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
II. Reviewing a Magistrate Judge's Report and Recommendation
The district court's duties in connection with a magistrate judge's R&R are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). See Federal Rules of Civil Procedure 72(b); 28 U.S.C. § 636(b)(1). The district court must 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." 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 676 (1980). "When no objections are filed, the district court may assume the correctness of the magistrate judges findings of fact and decide the motion of the applicable law." 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 novoreview to factual findings; ...