Jorge Gonzalez v. R.C. Johnson ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JORGE GONZALEZ, Case No. CV 19-5318 DSF (PVC) 12 Petitioner, ORDER ACCEPTING FINDINGS, CONCLUSIONS AND 13 v. RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE AND 14 R.C. JOHNSON, Warden, DIRECTING RESPONDENT TO ANSWER PETITION AS MODIFIED 15 Respondent. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records 18 and files herein, and the Amended Report and Recommendation of the United States 19 Magistrate Judge. The time for filing objections to the Amended Report and 20 Recommendation has passed and no objections have been received. Accordingly, the 21 Court accepts the findings, conclusions and recommendations of the Magistrate Judge. 22 However, the citation to Kelly v. Small on page two, line 12 is corrected to include the 23 reporter reference, i.e., 315 F.3d 1063. 24 25 IT IS ORDERED that: 26 27 (1) Petitioner’s requests for a stay under either Rhines v. Weber, 544 28 U.S. 269 (2005), or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), 1 overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th 2 Cir. 2007), are DENIED on the ground that a stay would be futile 3 because the claim Petitioner seeks to exhaust is plainly meritless; 4 5 (2) Petitioner’s unexhausted claim in Ground 3 is DENIED on the 6 merits pursuant to 28 U.S.C. § 2254(b)(2); and 7 8 (3) | Respondent is ORDERED to answer surviving Grounds 1, 2, 4 and 5 9 of the Petition within thirty days of the date of this Order. 10 11 IT IS SO ORDERED. 12 | DATED: August 18, 2020 / ) 13 Honorable Dale S. Fischer’ 4 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28