UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 4, 2009
ROLANDO CASTILLO, PETITIONER,
R. J. SUBIA, ET. AL., RESPONDENTS.
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 petition for writ of habeas corpus 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 Ninth Circuit's final disposition of the en banc rehearing granted in Hayward v. Marshall, 527 F. 3d 797 (9th Cr. 2008). (Ct. Rec. 12.)
Petitioner, proceeding pro se, opposes the proposed stay. (Ct. Rec. 14.) Counsel for respondent supports the proposed stay. (Ct. Rec. 13.)
After reviewing the record, considering the parties' responsive pleadings, and taking into account the interests of efficient and orderly judicial proceedings, this Court finds that a temporary stay of proceedings pending disposition of the Hayward case is appropriate as it appears to address issues necessary to the determination in this case.
IT IS HEREBY RECOMMENDED:
1. The Court issue a stay of proceedings pending the final disposition by the Ninth Circuit of the en banc rehearing granted in Hayward v. Marshall, 527 F.3d 797 (9th Cir. 2008), Case No. 06-55392.
2. The District Court Executive is directed to enter this Report and Recommendation and provide a copy to the parties 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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