(HC) Dean v. Robertson ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 De’SHAWN DeKKERIO DEAN, No. 2:18-cv-01287 TLN GGH P 12 Petitioner, 13 v. ORDER 14 J. ROBERTSON, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. §2254. The matter was referred to the United States Magistrate Judge 19 pursuant to 28 U.S.C. §636(b)(1) and Local Rule 302(c). 20 On August 13, 2018, respondent filed an answer to the petition for a writ of habeas 21 corpus. ECF No. 10. On October 2, 2018, petitioner filed a traverse. ECF No. 14. After 22 reviewing the parties’ briefing, on April 18, 2019 the undersigned issued an order providing 23 petitioner an opportunity to file a motion for stay and abeyance for a failure to exhaust his second 24 claim for ineffective assistance of counsel. ECF No. 16. Alternatively, if petitioner did not wish 25 to seek a stay, petitioner had the option to delete his unexhausted claim and file an amended 26 petition containing only exhausted claims. Id. On May 28, 2019, petitioner filed a motion to stay 27 pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), as well as an amended petition 28 containing only his exhausted claim. ECF Nos. 19, 20. On June 10, 2019, the undersigned issued 1 findings and recommendations recommending that petitioner’s motion to stay be granted and this 2 action be administratively stayed pursuant to Kelly. ECF No. 21. The presiding District Judge 3 adopted in full the June 10, 2019 findings and recommendations and granted a stay of these 4 proceedings on August 2, 2019. ECF No. 23. To date, petitioner has not updated the court on the 5 status of his exhaustion efforts. 6 IT IS HEREBY ORDERED that petitioner shall, within 30 days from the date of this 7 order, file a statement notifying the court whether he has a matter pending before the California 8 Supreme Court or whether the Supreme Court has considered a habeas petition and ruled on it. 9 Petitioner is warned that failure to comply with this order will result in a recommendation that 10 this action be dismissed without prejudice. 11 Dated: September 17, 2019 /s/ Gregory G. Hollows 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28