Opinion
No. CV-17-04325-PHX-NVW (ESW)
11-26-2018
Ralph F Esposito, Petitioner, v. Charles Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE NEIL V. WAKE, SENIOR UNITED STATES DISTRICT JUDGE:
Pending before the Court is Petitioner's "Motion to Court to dismiss entire Petition 'without prejudice' to refile unexhausted claims in state court or stay and abeyance to dismiss entire Petition" (Doc. 55).
In a November 8, 2018 Report and Recommendation (Doc. 49), the undersigned concluded that the majority of Petitioner's habeas claims are procedurally defaulted. The undersigned recommended that the Court deny and dismiss with prejudice Petitioner's Amended Petition (Doc. 10). Nothing in Petitioner's Motion (Doc. 55) alters that recommendation. It is therefore recommended that the deny Petitioner's request (Doc. 55) to dismiss this action without prejudice.
Regarding Petitioner's alternative request that the Court stay this case, the Supreme Court has instructed that a "stay and abeyance should be available only in limited circumstances" and is "only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Rhines v. Weber, 544 U.S. 269, 277 (2005) (explaining that a stay "frustrates AEDPA's objective of encouraging finality" and "undermines AEDPA's goal of streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his claims in state court prior to filing his federal petition"). Petitioner's Motion (Doc. 55) does not present good cause for Petitioner's failure to exhaust all of his habeas claims prior to initiating this action. See Mena v. Long, 813 F.3d 907, 911-12 (9th Cir. 2016) (holding that a court has the discretion to stay a fully unexhausted habeas petition under "the circumstances set forth in Rhines" and stating that "a stay is granted only when the petitioner shows, among other things, 'good cause for his failure to exhaust'") (quoting Rhines, 544 U.S. at 277). Moreover, Petitioner has not shown that his unexhausted habeas claims are potentially meritorious. See Rhines, 544 U.S. at 278. Therefore,
IT IS RECOMMENDED that the Court deny Petitioner's "Motion to Court to dismiss entire Petition 'without prejudice' to refile unexhausted claims in state court or stay and abeyance to dismiss entire Petition" (Doc. 55).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. However, pursuant to Rule 72(b), Fed. R. Civ. P., the parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
Dated this 26th day of November, 2018.
/s/_________
Eileen S. Willett
United States Magistrate Judge