Morrison v. Lizarraga
- Proceeding
- district
- Area
- civil
- Panel
- Michael M. Anello (author)
Analysis
The court reviewed a Report and Recommendation (R&R) regarding a state prisoner's motion for a stay and abeyance and the respondent's motion to dismiss for failure to exhaust state remedies. The court adopted the R&R, denied the motion to dismiss, and granted the stay pending exhaustion of a specific claim.
| What the court decided | Standard it applied | The model |
|---|---|---|
Adoption of Report and Recommendation“The Court ADOPTS the Report and Recommendation in its entirety;” | de novo | agree with court The court correctly applied the standard of review for a magistrate judge's R&R. Under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the district court must make a de novo determination of portions of the report to which objection is made. Since no objections were filed, the court reviewed the R&R for clear error or accuracy, finding it 'accurate' and 'well-reasoned.' |
Denial of Respondent's Motion to Dismiss“The Court DENIES Respondent’s motion to dismiss;” | de novo | agree with court The court denied the motion to dismiss for failure to exhaust by adopting the magistrate's recommendation. In the context of a Rhines stay, a motion to dismiss for failure to exhaust is typically denied if the court grants a stay to allow the petitioner to exhaust, as dismissal would be premature while the stay is in effect. The order indicates the stay is granted, making the denial of the dismissal consistent with the grant of the stay. |
Grant of Petitioner's Renewed Request for Rhines Stay“The Court GRANTS Petitioner’s renewed request for a Rhines stay;” | de novo | agree with court The court granted the stay pursuant to Rhines v. Weber. The order specifies the stay is pending exhaustion of 'Claim Two for ineffective assistance of trial counsel.' While the order does not explicitly recite the three Rhines factors (good cause, not dilatory, meritorious), it adopts the magistrate's 'detailed and well-reasoned' report which presumably analyzed these factors. The grant of a stay is a discretionary decision reviewed for abuse of discretion on appeal, but here the district court's adoption of the R&R is procedurally sound. |
The order itself: sound — The order is procedurally sound. It correctly identifies the standard of review for the magistrate's report (de novo for objections, though none were filed, leading to a general review for accuracy). It cites the correct statutory and case law authorities for the stay (Rhines) and the review process (28 U.S.C. § 636, Remsing). The specific terms of the stay (90-day status reports, 30-day motion to lift after final state decision) are standard and appropriate for a Rhines stay to ensure the petitioner does not delay the federal proceedings indefinitely.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 RYAN MICHAEL MORRISON, Case No.: 18cv1857-MMA (JLB) 11 ORDER ADOPTING REPORT AND 12 Petitioner, RECOMMENDATION OF UNITED v. STATES MAGISTRATE JUDGE; 13 JOE A. LIZARRAGA, Warden, et al., [Doc. No. 18] 14 DENYING RESPONDENT’S 15 Respondents. MOTION TO DISMISS;
16 [Doc. No. 12]
17 GRANTING PETITIONER’S RENEWED REQUEST FOR A STAY 18 AND ABEYANCE
19 20 21 Petitioner Ryan Michael Morrison (“Petitioner”), a state prisoner proceeding pro 22 se, filed a petition for writ of habeas corpus (the “Petition”) pursuant to 28 U.S.C. § 2254. 23 See Doc. No. 1. Two months later, Petitioner filed a motion for stay and abeyance 24 pursuant to Rhines v. Weber, 544 U.S. 269 (2005). See Doc. No. 4. The Court adopted 25 the report and recommendation of the assigned magistrate judge and denied Petitioner’s 26 motion for stay and abeyance without prejudice. See Doc. No. 7. Respondent Joe A. 27 Lizarraga (“Respondent”), Warden of Mule Creek State Prison, now moves to dismiss the 28 Petition on the grounds that Petitioner failed to exhaust his state court remedies with 1 respect to all claims in the petition. See Doc. No. 12. Petitioner filed an opposition 2 wherein he renews his request for a stay and abeyance under Rhines. See Doc. No. 17. 3 The matter was referred to United States Magistrate Judge Burkhardt for 4 preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). Judge 5 Burkhardt has issued a detailed and well-reasoned report recommending that the Court 6 deny Respondent’s motion to dismiss and grant Petitioner’s renewed request for a Rhines 7 stay. See Doc. No. 18. 8 Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 9 636(b)(1), the Court must “make a de novo determination of those portions of the report . 10 . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, 11 the findings or recommendations made by the magistrate [judge].” 28 U.S.C. § 12 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). 13 Objections to the Report and Recommendation were due no later than January 20, 2020. 14 See Doc. No. 18 at 11. To date, no objections have been filed.1 15 Accordingly, the Court finds that Judge Burkhardt has issued an accurate Report 16 and well-reasoned recommendation that Respondent’s motion to dismiss be denied and 17 that Petitioner’s renewed request for a stay and abeyance be granted. The Court hereby 18 ORDERS as follows: 19 1. The Court ADOPTS the Report and Recommendation in its entirety; 20 2. The Court DENIES Respondent’s motion to dismiss; 21 3. The Court GRANTS Petitioner’s renewed request for a Rhines stay; 22 4. This action is stayed pending exhaustion of Claim Two for ineffective assistance of 23 trial counsel; 24 5. Petitioner must file, every 90 days starting with the filing date of this Order, a 25 status report that details Petitioner’s progress in the California state courts; 26 27 1 The Clerk of Court served Petitioner with a copy of the Report and Recommendation via U.S. 28 1 6. Petitioner must file, within 30 days of a final decision by the California Supreme 2 Court, a motion requesting that the stay be lifted and that leave to file a First 3 Amended Petition pursuant to 28 U.S.C. § 2254 be granted. Petitioner must 4 include a proposed First Amended Petition with that filing; and 5 7. The Clerk of Court is instructed to administratively close the case until further 6 order of the Court. 7 8 IT IS SO ORDERED. 9 10 || Dated: February 5, 2020 ll BMaidel M —{ hillr 12 HON. MICHAEL M. ANELLO B United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28