The opinion of the court was delivered by: Gary A. Feess United States District Judge
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the Petition, the Magistrate Judge's Report and Recommendation ("R&R"), the Objections to the Report and Recommendation filed on May 27, 2010, and the records and files. Based upon the Court's de novo review, the Court agrees with the recommendation of the Magistrate Judge. Petitioner's objections are overruled.
Petitioner objects to the Magistrate Judge reaching abstention before Respondent has had an opportunity to waive abstention by responsive pleading. Petitioner relies on Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed. 2d 532 (1975) and Ohio Bureau of Employment Servs. v. Hodory, 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed. 2d 513 (1997). (Objections at 3.) Both cases found that in those rare instances in which the State wishes to proceed to the merits, "principles of equity and comity do not require this Court to refuse . . . the immediate adjudication [the State] seeks." See, e.g., Ohio Bureau, 419 U.S. at 480. However, neither case stands for the proposition that a district court cannot abstain before the State's responsive pleading has been filed. See, e.g., Lazarus v. Baca, 2010 WL 1006572, *3-6 (C.D. Cal. 2010) (abstaining from entertaining a habeas petition from a pretrial detainee on summary dismissal).
Petitioner objects to the following statement in the R&R: "As a preliminary matter, Petitioner does not identify which state court order he is challenging." (Objections at 5 (citing R&R at 5).) He complains that the Magistrate Judge "ignore[d] Exhibit # (C) attached to the memorandum." (Objections at 5.) Petitioner also attaches the order at issue to his objections, which is the Riverside County Superior Court's denial of Petitioner's state habeas petition on September 29, 2009. (Objections, Attached.) Given that Petitioner subsequently filed two more state habeas petitions, one with the California Court of Appeal and the other with the California Supreme Court, both of which were denied, it is implausible that Petitioner challenges only the lowest court's ruling. (See R&R at 3 n.1.) In any event, the objection is immaterial to the issue of abstention.*fn1
Petitioner objects to the Magistrate Judge's discussion of the "unusual delay" Petitioner alleges in his criminal case. (Objections at 8 (citing McNeely v. Blanas, 336 F.3d 822 (9th Cir. 2003).) As the R&R explained, "the fact that his criminal proceedings have been pending two years does not avoid abstention." (R&R at 6.) Moreover, McNeely does not help Petitioner. The defendant in that case was detained for five years without a preliminary hearing or trial. McNeely, 336 F.3d at 824. Petitioner has apparently been detained for two years and has had a preliminary hearing. (Petition Memo. at 3); see Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 493, 93 S.Ct. 1123, 35 L.Ed. 2d 443 (1973) ("nothing . . . permit[s] the derailment of a pending state proceeding by an attempt to litigate constitutional defenses prematurely in federal court").
Petitioner argues that pretrial petitions must be reviewed under a de novo standard. (Response to Order to Show Cause at 6; Objections at 9.) Petitioner is correct that the alleged constitutional violations are reviewed de novo, but the argument is immaterial to abstention.*fn2 The Court, in abstaining. does not reach the merits of the alleged constitutional violations or the standard of review.
Petitioner's remaining objections have no merit.
IT IS ORDERED that Judgment be entered denying the Petition and dismissing this ...