(HC) Vela v. Montgomery ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MANUEL A. VELA, No. 1:20-cv-00588-NONE-EPG-HC 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 14 W.L. MONTGOMERY, PETITIONER’S REQUEST TO FILE FIRST AMENDED PETITION AND MOTION TO 15 Respondent. STAY, DIRECTING CLERK OF COURT TO FILE FIRST AMENDED PETITION, AND 16 STAYING FIRST AMENDED PETITION 17 (Doc. Nos. 5, 8, 10) 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. On June 8, 2020, the assigned magistrate judge issued findings and 21 recommendations recommending that petitioner’s request to file a first amended petition and 22 granting petitioner’s request to stay the petition pursuant to Kelly v. Small, 315 F.3d 1063 (9th 23 Cir. 2003) be granted. (Doc. No. 10.) The findings and recommendations were served on 24 petitioner and contained notice that any objections were to be filed within fourteen (14) days of 25 the date of service. To date, no objections have been filed, and the time for doing so has passed. 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 27 de novo review. Having carefully reviewed the entire file, the court concludes that the findings 28 and recommendation are supported by the record and proper analysis. WAS 1. CU YOOUINUY INE ES MVUPTPOTIL bh POR VEE AY ee 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendation issued on June 8, 2020 (Doc. No. 10) are adopted; 3 2. Petitioner’s request to file an amended petition (Doc. No. 5) is granted; 4 3. Petitioner’s motion for a stay under Kelly (Doc. No. 8) is granted; 5 4. The Clerk of Court is directed to file the first amended petition (Doc. No. 6); 6 5. These proceedings are stayed and administratively closed pending petitioner’s 7 exhaustion of his unexhausted claims in state court; 8 6. Within thirty (30) days of the date of service of this order, petitioner shall pursue state 9 court remedies; 10 7. Petitioner is directed to file a status report with this court within thirty (30) days of the 11 date of service of this order and every ninety (90) days thereafter regarding the status 12 of his exhaustion petition; and 13 8. Within thirty (30) days following the final order of the state courts, petitioner shall 14 notify the court that the unexhausted claims have been exhausted and to request that 15 the stay be lifted and the case proceed. 16 Petitioner is forewarned that failure to comply with this order will result in the court 17 | vacating the stay. 18 | IT IS SO ORDERED. me □ | Dated: _ July 16, 2020 Yole A Load 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28