NOT FOR PUBLICATION

ORDER

JOHN J. TUCHI, District Judge.

At issue is the Report and Recommendation ("R&R") (Doc. 28) submitted in this matter by United States Magistrate Judge Deborah M. Fine, recommending that the Court deny Petitioner's Motion with Dismiss his Motion to Retract or Stay His Habeas Corpus (Doc. 20), and a letter which this Court construed as a motion to dismiss the Petition without prejudice (Doc. 23). The time for Petitioner to file any objections to the R&R is now past, and Petitioner filed no objection. The Court construes that lack of objection as a waiver of Petitioner's right to de novo review of the issues pursuant to United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). It nonetheless has considered de novo the motions and Judge Fine's analysis and resulting recommendations. Upon that review, the Court concludes to adopt the R&R in whole, to include the reasoning underlying it.

To the extent Petitioner intended his letter at Doc. 23 as a Motion to Dismiss without prejudice, granting it likely would foreclose as time-barred any subsequent filing on the grounds now at issue, as Judge Fine points out in the R&'R; in other words, a dismissal without prejudice would be illusory. Because Petitioner's letter at Doc. 23 is not explicit as to his desire that his Petition be dismissed with or without prejudice, it is possible Petitioner was attempting to convey a desire to dismiss his Petition with prejudice. The Court will not assume this or act on anything less than a clear statement of such a desire. If a dismissal with prejudice was Petitioner's desire, he may so inform the Court in a Reply, which the Court will allow as set forth below. At this point, the Court will treat the letter as a motion to dismiss without prejudice, and deny it, ordering that this habeas proceeding continues.

The Court also will deny Petitioner's Motion to Retract or Stay Proceedings (Doc. 20). It is satisfied that the grounds for the Petition have all been exhausted at the state court level; thus the stay-and-abey procedure serves no purpose in this matter and would simply delay any decision.

IT IS ORDERED adopting in whole the R&R in this matter (Doc. 28).

IT IS FURTHER ORDERED denying the Motion to Retract or Stay His Habeas Corpus (Doc. 20) and the letter construed as a Motion to Dismiss the Petition without prejudice (Doc. 23).

IT IS FURTHER ORDERED that Petitioner may file a Reply within thirty days of this Order if he chooses to do so.