(HC) Peterson v. Diaz ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD ANTHONY PETERSON, No. 2:19-cv-01480 WBS GGH P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 RALPH M. DIAZ, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding in pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. On November 12, 2019, respondent filed a motion to dismiss the 19 petition as fully unexhausted. ECF No. 9. On January 21, 2020, in a filing labeled objections, 20 petitioner requested a stay of these proceedings pending his exhaustion of state court remedies. 21 ECF No. 18. On March 2, 2020, the undersigned directed petitioner to file a motion for stay in 22 abeyance in accordance with Rhines v. Weber, 544 U.S. 269 (2005). ECF No. 22. The 23 undersigned further ordered respondent to file an opposition or a notice of opposition to 24 petitioner’s motion, and petitioner a reply, if any. Id. Petitioner was further ordered to 25 immediately file a notice of exhaustion with this court if petitioner exhausted his state court 26 remedies in the California Supreme Court prior to the resolution of the pending motion for stay. 27 Id. On April 22, 2020, petitioner filed a notice of exhaustion of his state court remedies. ECF No. 28 41. In light of petitioner’s notice of exhaustion of his habeas petition in the California Supreme 1 Court, the undersigned will recommend petitioner’s motion for stay and abeyance be denied as 2 moot. 3 Accordingly, IT IS HEREBY ORDERED that respondent is directed to file a response to 4 the petition as set forth in the court’s September 11, 2019 order (ECF No. 5), within 30 days 5 from the filing date of this order. This time limit is not dependent upon the final date of 6 adoption of these Findings and Recommendations. 7 Further, IT IS HEREBY RECOMMENDED that: 8 1. Respondent’s motion to dismiss (ECF No. 9) be denied as moot; 9 2. Petitioner’s motion for stay and abeyance (ECF No. 25) be denied as moot; These 10 findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 15 objections shall be filed and served within fourteen days after service of the objections. The 16 parties are advised that failure to file objections within the specified time may waive the right to 17 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 Dated: June 29, 2020 /s/ Gregory G. Hollows 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28