UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 20, 2009
JAMES ROCKERS, PETITIONER,
THERESA A. SCHWARTZ, RESPONDENT.
The opinion of the court was delivered by: James P. Hutton United States Magistrate Judge
REPORT AND RECOMMENDATION TO ORDER STAY OF PROCEEDINGS
It appears petitioner's habeas petition raises issues which will be decided by the Ninth Circuit in Hayward v. Marshall, 512 F. 3d 536, rehrg en banc granted, 527 F.3d 797 (9th Cir. 2008), Case No. 06-55392.
Accordingly, on January 30, 2009, the court directed the parties to show cause on or before February 20, 2009, why this matter should not be stayed temporarily pending the final disposition of the en banc rehearing granted in Hayward v. Marshall, 527 F.3d 797');">527 F. 3d 797 (9th Cr. 2008). (Ct. Rec. 29.)
Petitioner, through counsel, states he has no opposition to the proposed stay. (Ct. Rec. 31.) Counsel for respondent similarly does not object to the proposed stay. (Ct. Rec. 32.)
Based on the review of the record and the parties' agreement, this Court finds that a temporary stay is appropriate. Accordingly,
IT IS HEREBY RECOMMENDED:
1. The Court issue a stay of proceedings pending the final disposition of the en banc rehearing granted in Hayward v. Marshall, 527 F.3d 797 (9th Cir. 2008).
2. The District Court Executive is directed to enter this Report and Recommendation and provide a copy to counsel and to the referring judge.
Any party may object to a magistrate judge's proposed findings, recommendations or report within ten (10) days following service with a copy thereof. Such party shall file written objections with the Clerk of the Court and serve objections on all parties, specifically identifying the portions to which objection is being made, and the basis therefor. Any response to the objection shall be filed within ten (10) days after receipt of the objection. Attention is directed to Fed. R. Civ. P. 6(d), which adds additional time after certain kinds of service.
A district judge will make a de novo determination of those portions to which objection is made and may accept, reject, or modify the magistrate judge's determination. The judge need not conduct a new hearing or hear arguments and may consider the magistrate judge's record and make an independent determination thereon. The judge may, but is not required to, accept or consider additional evidence, or may recommit the matter to the magistrate judge with instructions. United States v. Howell, 231 F. 3d 615, 621 (9th Cir. 2000); 28 U.S.C. § 636(b)(1)(B) and (C), Fed. R. Civ. P. 72. A magistrate judge's recommendation cannot be appealed to a court of appeals; only the district judge's order or judgment can be appealed.
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