UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 29, 2011
WILLIAM H. HEARN,
The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER: (1) ADOPTING REPORT AND RECOMMENDATION; MOTION TO DISMISS; (3) DENYING PETITIONER'S MOTION TO STAY AND ABEY; AND (4) DENYING CERTIFICATE OF APPEALABILITY (2) GRANTING RESPONDENT'S (ECF Nos. 7, 10, 12)
Presently before the Court is Petitioner William H. Hearn's petition for writ of habeas corpus. (ECF No. 1.) Also before the Court are (1) Respondent George Neotti's motion to dismiss (ECF No. 7); (2) Petitioner's "waiver of exhaustion allowing federal claim to be heard without prior hearing" (Stay Mot., ECF No. 10), which the Court construes as a motion to stay and abey the petition (see R&R 2, ECF No. 12); and (3) Magistrate Judge William V. Gallo's report and recommendation advising the Court to grant Respondent's motion and deny Petitioner's (R&R).
Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district court's duties in connection with a magistrate judge's report and recommendation. 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, 673--76 (1980);
United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely objection, the Court "need only satisfy itself that there is no clear error on the face of the record in order to accept the report and recommendation." Fed. R. Civ. P. 72 advisory committee's note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)); see also United States v. ReynaTapia, 328 F.3d 1114, 1121 (9th Cir. 2003)("[T]he district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.").
Here, Petitioner failed to timely object to Magistrate Judge Gallo's report and recommendation. (See R&R 7 (ordering parties to file objections "no later than August 12, 2011").) Having reviewed the report and recommendation, the Court finds that it is thorough, well reasoned, and contains no clear error. Accordingly, the Court (1) ADOPTS Magistrate Judge Gallo's report and recommendation, (2) GRANTS Respondent's motion to dismiss, (3) DISMISSES the petition WITHOUT PREJUDICE to Petitioner's refiling another petition containing only unexhausted claims, and (4) DENIES Petitioner's motion to stay and abey.
The Court is obliged to determine whether a certificate of appealability should issue in this matter. See Fed. R. App. P. 22(b). A certificate of appealability is authorized "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by showing that "reasonable jurists" would debate the Court's assessment of the constitutional claims. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where, as here, the petition is dismissed on procedural grounds, a certificate of appealability "should issue when the petitioner shows, at least,  that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and  that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
Here, Petitioner has not shown that reasonable jurists would debate the propriety of the Court's procedural rulings. Specifically, Petitioner does not dispute that his petition contains only unexhausted claims and is therefore subject to dismissal. (See Stay Mot. 2; Chambers v. McDaniel, 549 F.3d 1191, 1195 (9th Cir. 2008) ("A state prisoner must exhaust a federal constitutional claim in state court before a federal court may consider a claim." (citing 28 U.S.C. § 2254(b)(1)(A), (c))).) And the law is clear that stay and abeyance is "available only in limited circumstances," like when the petition contains some claims that have been exhausted in state court and others that have not. Rhines v. Weber, 544 U.S. 269, 277 (2005). Where, as here, the petition contains only unexhausted claims, stay and abeyance is not appropriate. See, e.g., Cervantez v. Jacquez, 2011 WL 38978, at *1 (E.D. Cal. Jan. 5, 2011) (citing, inter alia, Rhines, 544 U.S. 269). Accordingly, the Court DENIES a certificate of appealability.
This Order concludes the litigation in this matter. The Clerk shall close the file. IT IS SO ORDERED.
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