(HC) Fisher v. Sherman ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JACOB FISHER, No. 2:18-cv-2725-WBS-EFB P 12 Petitioner, 13 v. ORDER 14 STUART SHERMAN, Warden of the California Substance Abuse Treatment 15 Facility, 16 Respondent. 17 18 Petitioner, a state prisoner proceeding without counsel, has filed an application for a writ 19 of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On August 6, 2019, the magistrate judge filed findings and recommendations herein 22 which were served on all parties and which contained notice to all parties that any objections to 23 the findings and recommendations were to be filed within fourteen days. Neither party has filed 24 objections to the findings and recommendations. 25 The court has reviewed the file and finds the findings and recommendations to be 26 supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY 27 ORDERED that: 28 1. The findings and recommendations filed August 6, 2019, are adopted in full; 1 2. Petitioner’s motion to stay (ECF No. 17) is GRANTED as follows: 2 a. Petitioner is granted a stay pursuant to the procedure outlined in Kelly v. Small, 3 315 F.3d 1063 (9th Cir. 2003); 4 b. Within fourteen days from the date of service of this order, petitioner is directed 5 to submit an amended petition which deletes his unexhausted ineffective assistance of 6 counsel claims; 7 c. The amended petition will be stayed and held in in abeyance to allow petitioner 8 an opportunity to exhaust his ineffective assistance claims in state court; and 9 d. Petitioner will then be allowed to file a third amended petition to attempt to 10 reattach his exhausted claims. 11 3. Petitioner’s motion to stay and amend petition (ECF No. 16) is DENIED as moot; and 12 4. Respondent’s motion to dismiss (ECF No. 11) is DENIED. 13 | Dated: September 20, 2019 . - ak. ah Lhe, (LA. M4 WILLIAMB.SHUBB 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28