Ortegav.Madden

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIAJun 7, 2019
Case No.: 18-cv-1558-AJB-LL (S.D. Cal. Jun. 7, 2019)

Case No.: 18-cv-1558-AJB-LL

06-07-2019

Rosman Ortega, Petitioner, v. Raymond Madden, Respondent.


ORDER:

(1) ADOPTING THE REPORT AND RECOMMENDATION (Doc. No. 15), and

(2) REQUIRING A RESPONSE FROM PETITIONER.

Pro se Petitioner Rosman Ortega filed an amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging perceived errors during his state court criminal trial. (Doc. No. 4 at 5-6.) The Magistrate Judge found in a Report and Recommendation, ("R&R"), that two of the six grounds Petitioner raised were unexhausted as they were never presented to the California Supreme Court. (Doc. No. 15 at 5.) Based on this finding, the R&R concluded that Petitioner's writ was a "mixed" petition of both exhausted and unexhausted claims. (Id. at 6.) As such, the R&R recommended three paths from which Petitioner must choose to move his case forward—or risk dismissal of his petition without prejudice. (Id. at 6-8.) The R&R gave Petitioner until March 1, 2019, to object to the R&R. (Id.) Petitioner has not objected.

Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district judge's duties in connection with a magistrate judge's R&R. The district judge 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. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of objection(s), the Court "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72(b) advisory committee note to the 1983 amendment; see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

Reviewing the R&R's analysis, the Court agrees with the Magistrate Judge that Petitioner's petition is mixed because it contains both exhausted and unexhausted claims. The Court also finds the three options presented by the Magistrate Judge are an accurate representation of Petitioner's choices. In summary, those choices include: (1) voluntarily dismissing his petition, (2) abandoning his unexhausted claims, or (3) filing a motion to stay federal proceedings. Petitioner is encouraged to review the R&R, (Doc. No. 15), in its entirety for more details on those options.

Finding the R&R contains no clear error and is well-reasoned, the Court adopts the Magistrate Judge's recommendation. Petitioner has until July 12 , 2019 , to inform the Court of how he wishes to proceed. If Petitioner does not notify the Court within that time frame, his habeas petition will be dismissed without prejudice.

IT IS SO ORDERED. Dated: June 7, 2019

/s/_________


Hon. Anthony J. Battaglia


United States District Judge