Kane v. Gastelo
- Proceeding
- district
- Area
- civil
- Panel
- William Q. Hayes (author)
Analysis
The court reviewed a Magistrate Judge's Report and Recommendation regarding a Motion to Dismiss in a habeas corpus petition. The court adopted the R&R, denied the Motion to Dismiss, and ordered the petitioner to file a motion for stay or an amended petition within 52 days or face dismissal of unexhausted claims.
| What the court decided | Standard it applied | The model |
|---|---|---|
Adoption of the Report and Recommendation“IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 9) is ADOPTED in its entirety.” | de novo | agree with court The court correctly applied the standard for reviewing a Report and Recommendation. Under 28 U.S.C. § 636(b)(1), a district judge must make a de novo determination of those portions of the report to which objection is made. The order explicitly states that 'no objections have been filed by either party.' While the court cites *Wang* and *Reyna-Tapia* to suggest that de novo review is not required for unobjected portions, it proceeds to state it has 'reviewed the Report and Recommendation, the record, and the submissions of the parties' before adopting it. This practice is consistent with the duty to ensure the R&R is not clearly erroneous or contrary to law, even in the absence of objections. The adoption is procedurally sound. |
Denial of the Motion to Dismiss“The Motion to Dismiss filed by Defendant Josie Gastelo (ECF No. 7) is DENIED.” | unclear | agree with court The order denies the motion to dismiss but does not explicitly state the legal standard applied to the motion itself (e.g., Rule 12(b)(6) or habeas-specific exhaustion standards). However, the denial is tied to the adoption of the R&R, which presumably analyzed the exhaustion issues. The court then provides a path forward (stay or amendment) rather than dismissing immediately, which is a common and appropriate procedural mechanism in habeas cases involving mixed petitions (exhausted and unexhausted claims) to allow the petitioner to cure the defect. The decision to deny rather than dismiss is supported by the court's subsequent order allowing time to file a stay motion or amended petition. |
Order to file Motion for Stay or Amended Petition“On or before April 24, 2020, Petitioner may file a Motion for Stay addressing the three Rhines conditions. In the alternative, on or before April 24, 2020, Petitioner may file a Motion for Stay pursuant to Kelly and an Amended Petition asserting only the exhausted claim for relief (ground two).” | unclear | agree with court The court correctly identifies that the petition contains both exhausted and unexhausted claims, creating a 'mixed petition.' Under *Rhines v. Weber*, 544 U.S. 269 (2005), and *Kelly v. Small*, 315 F.3d 1063 (9th Cir. 2003), a federal court may stay a mixed petition if the petitioner shows good cause for the failure to exhaust, that the unexhausted claims are potentially meritorious, and that the failure to exhaust was not the product of abusive or dilatory litigation. The court gives the petitioner a specific deadline to address these conditions or to amend the petition to remove unexhausted claims. This is a standard and appropriate procedural order to manage the case and preserve the petitioner's rights while enforcing exhaustion requirements. |
The order itself: sound with gaps — The order is procedurally sound. It correctly identifies the standard for reviewing a Report and Recommendation in the absence of objections, cites relevant Ninth Circuit authority, and adopts the R&R. It then correctly addresses the substantive issue of a mixed habeas petition by denying the motion to dismiss and providing the petitioner with a clear path forward: either file a motion for stay under *Rhines*/*Kelly* or amend the petition to remove unexhausted claims. The deadline is specific and reasonable. The only minor gap is that the order does not explicitly cite *Rhines* or *Kelly* when discussing the stay conditions, instead referring to them by name ('Rhines conditions', 'pursuant to Kelly'). However, the legal framework is correctly applied.
Opinion
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MICHAEL D. KANE, Case No.: 3:19-cv-01354-WQH-MDD 11 ORDER Petitioner, 12 v. 13 JOSIE GASTELO, 14 15 Respondent. 16 HAYES, Judge: 17 The matters before the Court are the Motion to Dismiss filed by Defendant Josie 18 Gastelo (ECF No. 7) and the Report and Recommendation issued by the Magistrate Judge 19 (ECF No. 9). 20 The duties of the district court in connection with a report and recommendation of a 21 magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 22 636(b). The district judge must “make a de novo determination of those portions of the 23 report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in 24 part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b). The 25 district court need not review de novo those portions of a Report and Recommendation to 26 which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 27 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) 28 1 (“Neither the Constitution nor the [Federal Magistrates Act] requires a district judge to 2 ||review, de novo, findings and recommendations that the parties themselves accept as 3 || correct.”). 4 The record reflects that no objections have been filed by either party. On February 5 ||21, 2020, Petitioner filed a Motion for Extension of Time to File an Amended Petition. 6 (ECF No. 12). Petitioner requested a 60-day extension from February 24, 2020 to file an 7 ||amended petition. On March 2, 2020, the Magistrate Judge issued an Order denying 8 || Petitioner’s Motion for Extension of Time to File an Amended Petition. (ECF No. 13). 9 || The Order states 10 Petitioner’s motion is premature and is DENIED without prejudice. ll Petitioner will have the opportunity to file an amended petition based upon the district judge’s ruling on the Report and Recommendation. (See ECF No 12 9). 13 Id. at 2. The Court has reviewed the Report and Recommendation, the record, and the submissions of the parties. 15 IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 9) is 16 ADOPTED in its entirety. The Motion to Dismiss filed by Defendant Josie Gastelo (ECF No. 7) is DENIED. The Court concludes that the Petition is subject to dismissal absent a 18 stay because it contains exhausted and unexhausted claims for relief. On or before April 19 24, 2020, Petitioner may file a Motion for Stay addressing the three Rhines conditions. In 20 the alternative, on or before April 24, 2020, Petitioner may file a Motion for Stay pursuant 1 to Kelly and an Amended Petition asserting only the exhausted claim for relief (ground 22 two). If Petitioner fails to move for a stay under Rhines or Kelly, the Court shall dismiss 23 Petitioner’s unexhausted claims for relief (grounds one, three, and four) and shall proceed 24 solely as to Petitioner’s exhausted claim for relief (ground two). 29 Dated: 3/3/2020 Kio 26 bec 2. Mages 27 United States District Court 28