Sarmiento v. Pfeiffer
- Proceeding
- district
- Area
- civil
- Panel
- William Q. Hayes (author)
Analysis
The court reviewed a Magistrate Judge's Report and Recommendation regarding a prisoner's motion for stay and abeyance in a habeas corpus petition. The court adopted the R&R, granting a stay under *Kelly v. Small* for unexhausted claims while denying a stay under *Rhines v. Weber*, and ordered the petitioner to dismiss the unexhausted claims without prejudice.
| What the court decided | Standard it applied | The model |
|---|---|---|
Adoption of the Magistrate Judge's Report and Recommendation“IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 14) is ADOPTED in its entirety.” | de novo | agree with court The court correctly applied the standard of review for 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 notes that no objections were filed. While the court states it reviewed the record, the legal standard for unobjected portions is generally a clear error review or acceptance, but adopting the R&R in its entirety after a general review is a standard and permissible procedural action when no specific objections require de novo scrutiny of specific findings. |
Granting of Motion for Stay pursuant to Kelly v. Small“Petitioner’s Motion for Stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007) is GRANTED.” | unclear | agree with court The court granted the stay based on *Kelly v. Small*, which allows for a stay and abeyance of a mixed petition (containing both exhausted and unexhausted claims) to allow the petitioner to exhaust the unexhausted claims in state court. The order directs the dismissal of unexhausted claims without prejudice and sets a timeline for status reports, which is consistent with the *Kelly* procedure. Although *Robbins v. Carey* overruled *Kelly* on the specific issue of whether a stay is required for mixed petitions (holding it is discretionary, not mandatory), it did not overrule the *availability* of such a stay. The court's decision to grant the stay is within its discretion and follows the procedural framework established in *Kelly* for managing mixed petitions. |
Denial of Motion for Stay pursuant to Rhines v. Weber“Petitioner’s Motion for Stay pursuant to Rhines v. Weber, 544 U.S. (2005) is DENIED.” | unclear | agree with court *Rhines v. Weber* allows for a stay of federal habeas proceedings to allow a petitioner to return to state court to exhaust claims, typically when there are exceptional circumstances. The court denied this specific motion but granted the *Kelly* stay. Since the *Kelly* stay was granted, the practical effect of staying the unexhausted claims is achieved. Denying the *Rhines* motion is consistent with the fact that the court is using the *Kelly* mechanism (dismissal without prejudice of unexhausted claims) rather than a full stay of the entire case under *Rhines*. The two doctrines are distinct; *Kelly* involves dismissing unexhausted claims to allow exhaustion, while *Rhines* involves staying the federal case. The court's choice to use *Kelly* and deny *Rhines* is a valid procedural election. |
Order to dismiss unexhausted claims without prejudice“Within 30 days of the entry of this Order, Petitioner shall file a Notice of Dismissal to dismiss without prejudice his unexhausted claims (grounds two and three of his First Amended Petition).” | unclear | agree with court This is a standard procedural requirement accompanying a *Kelly* stay. To allow the petitioner to exhaust the claims in state court, the federal court must dismiss those specific claims without prejudice so that the petitioner is not barred by res judicata or other doctrines from pursuing them in state court. The order correctly identifies the unexhausted claims (grounds two and three) and sets a deadline for the dismissal. |
The order itself: sound — The order is procedurally sound. It correctly identifies the standard of review for the R&R, notes the lack of objections, and adopts the R&R. It correctly distinguishes between the *Kelly* and *Rhines* stay mechanisms and grants the *Kelly* stay, which is the appropriate procedure for a mixed petition where the petitioner wishes to exhaust unexhausted claims. The specific orders (dismissal of unexhausted claims, status reports, timeline for lifting the stay) are consistent with the *Kelly* framework. The order is concise but covers all necessary procedural steps.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE ELIAS SARMIENTO, Case No.: 3:20-cv-00930-WQH-AGS 12 ORDER Petitioner, 13 v. 14 CHRISTIAN PFEIFFER and 15 XAVIER BECERRA, 16 17 Respondents. 18 HAYES, Judge: 19 The matter before the Court is the Motion for Stay and Abeyance filed by Petitioner 20 Jose Elias Sarmiento (ECF No. 4) and the Report and Recommendation issued by the 21 Magistrate Judge (ECF No. 14). 22 The duties of the district court in connection with a report and recommendation of a 23 magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 24 636(b). The district judge must “make a de novo determination of those portions of the 25 report . . . to which objection is made” and “may accept, reject, or modify, in whole or in 26 part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). 27 The district court need not review de novo those portions of a Report and Recommendation 28 to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 1 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“Neither the 2 || Constitution nor the [Federal Magistrates Act] requires a district judge to review, de novo, 3 || findings and recommendations that the parties themselves accept as correct.”’). 4 The record reflects that no objections have been filed by either party. The Court has 5 reviewed the Report and Recommendation, the record, and the submissions of the parties. 6 IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 14) is 7 || ADOPTED in its entirety. Petitioner’s Motion for Stay is GRANTED IN PART and 8 || DENIED IN PART. Petitioner’s Motion for Stay pursuant to Kelly v. Small, 315 F.3d 1063 9 || (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 10 |}2007) is GRANTED. Petitioner’s Motion for Stay pursuant to Rhines v. Weber, 544 U.S. 11 (2005) is DENIED. 12 1. Within 30 days of the entry of this Order, Petitioner shall file a Notice of 13 Dismissal to dismiss without prejudice his unexhausted claims (grounds two and 14 three of his First Amended Petition). If Petitioner fails to timely withdraw his 15 unexhausted claims, the Court will dismiss the entire mixed Petition. 16 2. The parties shall jointly file periodic status reports summarizing Petitioner’s 17 efforts to exhaust his dismissed claims. The first report shall be filed on or before 18 March 1, 2021 and subsequent reports shall be filed every three months thereafter 19 (e.g., June 1, 2021, September 1, 2021, etc.). 20 3. Within 45 days of the state court’s decision resolving Petitioner’s claims, 21 Petitioner shall file a motion requesting that the stay be lifted and that he be 22 granted leave to file an amended petition. The request shall include Petitioner’s 23 proposed amended petition and demonstrate that the new claims are timely 24 or relate back to the pending Petition. 25 || Dated: February 16, 2021 Nitta Ze. A a 26 Hon, William Q. Hayes 17 United States District Court 28