Filed: Jul. 24, 2019
Latest Update: Jul. 24, 2019
Summary: ORDER MORRISON C. ENGLAND, JR. , District Judge . Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1)(B) and Local Rule 302. On March 13, 2019, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings a
Summary: ORDER MORRISON C. ENGLAND, JR. , District Judge . Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1)(B) and Local Rule 302. On March 13, 2019, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings an..
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ORDER
MORRISON C. ENGLAND, JR., District Judge.
Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On March 13, 2019, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. Petitioner filed an additional motion to stay these habeas proceedings on April 3, 2019, which the Court construes as objections to the findings and recommendations. ECF No. 23.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed March 13, 2019, (ECF No. 22) are ADOPTED in full;
2. Petitioner's motion to stay (ECF No. 23) filed on April 3, 2019 is construed as objections to the findings and recommendations. So construed, the motion is DENIED.
3. Respondent's motion to dismiss (ECF No. 20) is GRANTED based on petitioner's failure to exhaust claim two.
4. Petitioner's request to stay his mixed federal habeas petition (ECF No. 21) pursuant to Rhines v. Weber, 544 U.S. 269 (2005), is DENIED for lack of good cause shown.
5. Petitioner's request to stay his habeas petition pursuant to Kelly v. Small, 315 F.3d 1063, 1074 (9th Cir. 2002), is GRANTED.
6. Within 30 days from the date of this order petitioner shall file a first amended federal habeas petition containing only claim one.
7. Upon receipt of a fully exhausted first amended federal habeas petition, the clerk of court shall administratively stay this action pursuant to Kelly.
8. Petitioner is ordered to file a "Notice of Exhaustion" within 30 days of any decision by the California Supreme Court.
IT IS SO ORDERED.
