Tam H. Nguyen v. D. Daveys, No. 8:2017cv01863 - Document 74 (C.D. Cal. 2021)

Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Fernando M. Olguin. IT THEREFORE IS ORDERED that judgment be entered dismissing thePetition without prejudice. The Court takes no position on whether any subsequently filed federal habeas petition would be timely or otherwise procedurally proper. 70 (es)
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Tam H. Nguyen v. D. Daveys Doc. 74 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TAM H. NGUYEN, Petitioner, 12 v. 13 14 THERESA CISNEROS, Acting Warden, 15 Respondent. 16 17 ) ) ) ) ) ) ) ) ) ) ) Case No. SACV 17-1863-FMO (JPR) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE The Court has reviewed the Petition, records on file, and 18 Report and Recommendation of U.S. Magistrate Judge, which 19 recommends that judgment be entered dismissing the Petition 20 without prejudice. 21 Petitioner filed Objections to the R. & R., in which he concedes 22 the correctness of much of the Magistrate Judge’s analysis.1 See 28 U.S.C. § 636(b)(1). On June 16, 2021, 23 24 25 26 27 28 1 Petitioner also filed a notice of supplemental lodgment, asking the Court to “electronically” lodge a recent habeas petition he apparently filed in the superior court and the order denying it. (Notice at 1.) He says his original copies of them are “indisposed.” (Id.) But this Court does not have the ability to lodge documents it does not possess. Because the existence of these documents does not change the Court’s analysis, it assumes they exist and say what Petitioner says they do. 1 Dockets.Justia.com 1 2 Respondent has not responded to the Objections. As the Magistrate Judge correctly concluded and Petitioner 3 does not contest, all of his claims — those raised in the 4 original Petition as well as those he reframed in his amended 5 reply to the Answer — are unexhausted. 6 R. & R. at 10-12).)2 7 to have exhausted them in the four years this action has been 8 pending. 9 that he did not have to wait for this Court to rule on his stay (See Objs. at 4 (citing And he has not shown good cause for failing As the Magistrate Judge pointed out, she twice told him 10 motion to go back to state court and raise the claims there. 11 (See R. & R. at 14-15.) 12 say that “the only reason he held back and did not attempt to 13 exhaust before the Court granted the ‘stay’ was because he was 14 following the rules as he interpreted them.” 15 light of the Magistrate Judge’s clear instructions to the 16 contrary — which Petitioner in fact did appear to understand 17 because after she so instructed the first time he immediately 18 went back to state court to exhaust his original claims (see R. & 19 R. at 14) — this bare allegation doesn’t demonstrate good cause. 20 And although he’s apparently now trying to exhaust his claims 21 (see Objs. at 2-3), he’s years too late. 22 He has no answer for this other than to (Objs. at 5.) In Having reviewed de novo those portions of the R. & R. to 23 which Petitioner objects, the Court agrees with and accepts the 24 findings and recommendations of the Magistrate Judge. 25 THEREFORE IS ORDERED that judgment be entered dismissing the 26 Petition without prejudice. IT The Court takes no position on 27 2 28 The Court uses Petitioner’s pagination even though he begins his Objections with page 2. 2 1 whether any subsequently filed federal habeas petition would be 2 timely or otherwise procedurally proper. 3 4 5 DATED: July 14, 2021 /s/ FERNANDO M. OLGUIN U.S. DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3