(HC) Arismendez v. Baughman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROLANDO ARISMENDEZ, 12 No. 2:17-cv-00792-MCE-CKD P Petitioner, 13 v. 14 ORDER DAVID BAUGHMAN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On January 13, 2010, the magistrate judge filed findings and recommendations herein 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within fourteen days. Neither party has filed 23 objections to the findings and recommendations. 24 The Court presumes that any findings of fact are correct. See Orand v. United States, 602 25 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 26 See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having 27 reviewed the file, the Court finds the findings and recommendations to be supported by the record 28 1 and by the magistrate judge’s analysis. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The findings and recommendations filed January 13, 2010, are ADOPTED in full; 4 2. Petitioner’s motion for a stay filed on March 7, 2019 (ECF No. 22) is DENIED as 5 moot since there was no pending federal habeas corpus petition to stay at that juncture. 6 3. Petitioner’s motion to stay his first amended federal habeas petition (ECF No. 27) is 7 GRANTED in part and DENIED in part. To the extent that the motion seeks a stay pursuant to 8 Rhines v. Weber, 544 U.S. 269 (2005), the motion is DENIED. Petitioner’s motion to stay and 9 abey this action pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), is GRANTED. 10 4. The Clerk of Court is directed to administratively stay the first amended federal habeas 11 petition (ECF No. 26) until further order of the court. 12 5. Petitioner is directed to file a status report with the court every 90 days indicating what 13 efforts he has taken to exhaust his state court remedies. 14 6. Petitioner is further directed to file a motion to lift the stay within 30 days of any 15 decision by the California Supreme Court. 16 IT IS SO ORDERED. 17 18 DATED: March 24, 2020 19 20 21 22 23 24 25 26 27 28