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Levao v. Lewis

November 23, 2010

UNITED LEVAO, PETITIONER,
v.
D.T. LEWIS, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER(1) ADOPTING REPORT AND RECOMMENDATION [DOC. 9], (2) OVERRULING PETITIONER'S OBJECTIONS [DOC. 11], AND (3) DENYING MOTION FOR STAY AND ABEYANCE [DOC. 3]

On May 13, 2010, Petitioner United Levao, a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 ("Petition"), and a motion to stay the federal habeas proceedings and hold the Petition in abeyance. Respondent D.T. Lewis opposes the motion.

On July 29, 2010, United States Magistrate Judge Nita L. Stormes issued a Report and Recommendation ("Report") recommending that this Court deny the motion for stay and abeyance. Petitioner filed an objection to the Report. Respondent did not file a reply.

The Court decides the matters on the papers submitted and without oral argument. See Civ. Local R. 7.1(d)(1). For the reasons outlined below, the Court ADOPTS the Report in its entirety (Doc. 9), OVERRULES Petitioner's objections (Doc. 11), and DENIES Petitioner's motion for stay and abeyance (Doc. 3).

I. BACKGROUND

In 2006, Petitioner was convicted in San Diego Superior Court of first-degree murder with enhancements for personal use of a firearm and commission of a crime for the benefit of a gang. (Pet. ¶¶ 1--6 [Doc. 1]; Resp't's Opp'n Ex. D, at 56 [Doc. 6-1].) The trial court sentenced Petitioner to state prison for 25 years to life for the murder conviction, added a consecutive 25 years to life for the firearm enhancement, and stayed the sentence on the gang enhancement. (Pet. ¶¶ 4--6; Resp't's Opp'n Ex. D, at 56.)

Petitioner raised four individual claims on direct appeal. (Resp't's Opp'n Ex. D, at 13, 22--51.) On November 12, 2008, the California Court of Appeal rejected Petitioner's claims and affirmed the trial court's judgments, but with modifications based on grounds separate from Petitioner's individual claims.*fn1 (Pet. ¶ 11; Resp't's Opp'n Ex. D, at 70.) Petitioner pursued review in the California Supreme Court, but his Petition for Review was denied. (Pet. ¶ 12; Resp't's Opp'n Ex. C, at 10.)

On May 6, 2010, Petitioner began pursuing his state-court remedies when he delivered his state habeas petition to prison authorities. (Pet. ¶ 24; Resp't's Opp'n Ex. B, at 3.) On May 13, 2010, he filed a Petition a for Writ of Habeas Corpus under 28 U.S.C. § 2254, and a motion to stay the federal habeas proceedings and hold the Petition in abeyance.

In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Petitioner's one-year statue of limitations to file a federal habeas petition expired on May 12, 2010.*fn2 (Pet. ¶ 12.) On June 10, 2010, Respondent filed his opposition to the stay-and-abeyance motion. Petitioner filed his reply on July 19, 2010. Also, on June 10, 2010, Petitioner filed a petition for writ of habeas corpus in San Diego Superior Court. (Resp't's Opp'n Ex. B, at 3--6.)

On July 29, 2010, Magistrate Judge Stormes issued the Report finding that Petitioner filed a mixed petition containing exhausted and unexhausted claims. (Report 1--2 [Doc. 9].) Petitioner exhausted his state-court remedies with respect to the first four claims raised on direct appeal, but not the five additional claims raised in his federal habeas petition. (Id.; see Pet., Attach. 1, at 5--13.) As such, the Report recommended that this Court deny the motion for stay and abeyance, but presented Petitioner with options for moving forward with his Petition. (Id. at 7.) On August 26, 2010, Petitioner filed his objection to the Report. Respondent did not file a reply.

II. LEGAL STANDARD

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. Ariz. 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 RenyaTapia, 328 F.3d at 1121); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopting 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.).

In contrast, the duties of a district court in connection with a magistrate judge's report and recommendation are quite different when an objection has been filed. These duties are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). Specifically, 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."

28 U.S.C. § 636(b)(1)(c)); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); United States v. Remsing, 874 ...


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