(HC) Palmero v. Robertson ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PETER PALMERO, No. 1:20-cv-00413-NONE-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (1) TO DENY 13 v. MOTION TO STAY AND (2) TO DISMISS PETITION IN PART 14 JIM ROBERTSON, Warden, (Doc. Nos. 1, 3, 14, 19) 15 Respondent. 16 17 Petitioner Peter Palmero, a state prison, has petitioned the court for a writ of habeas 18 corpus under 28 U.S.C. § 2254, challenging his 2017 conviction for possessing a sharp instrument 19 in a penal institution. His petition is based on claims that (1) the evidence at trial was insufficient 20 to establish the elements of the offense of conviction, (2) he was not provided effective assistance 21 by his trial counsel and (3) he was not provided effective assistance by his appellate counsel. 22 (Doc. No. 1 at 16, 20, 27.) Petitioner has conceded that he has failed to exhaust state remedies as 23 to his second and third claims alleging ineffective assistance of counsel, but has brought 24 duplicative motions for stay and abeyance seeking a stay of these federal habeas proceedings 25 while he returns to state court to exhaust his unexhausted ineffective assistance claims. (Doc. 26 Nos. 3, 14.) 27 This action was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 28 636(b)(1)(B) and Local Rule 302. On August 12, 2020, the assigned magistrate judge issued wOASe LOU EVUNT LOIN □□ SINNER PIO ee OY ev eS 1 | findings and recommendation recommending that petitioner’s motion for stay and abeyance be 2 | denied and that his ineffective assistance of counsel claims be dismissed because petitioner had 3 | not made the required showing justifying the granting of a stay. (Doc. No. 19 at 2-5) (citing 4 | Rhines v. Weber, 544 U.S. 269, 277-78 (2005)) Petitioner has objected to the magistrate judge’s 5 | findings and recommendations. (Doc. No. 20.) 6 Pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this court has reviewed this 7 | case de novo and finds the pending findings and recommendations to be supported by the record 8 || and proper analysis. Having also reviewed petitioner’s objections, the court finds that petitioner 9 | has failed to meaningfully address or contradict the analysis set forth in the findings and 10 | recommendations. Accordingly, the court will adopt the pending findings and recommendations. 11 Accordingly, the court ORDERS as follows: 12 1. The findings and recommendations (Doc. No. 19), filed on August 12, 2020, are 13 ADOPTED in full; 14 2. Petitioner’s motions for stay and abeyance (Doc. Nos. 3, 14) are DENIED; 15 3. Petitioner’s second and third claims for federal habeas relief as set forth in his 16 petition (Doc. No. 1) are DISMISSED; and 17 4. The matter is REFERRED BACK to the magistrate judge for further proceedings 18 with respect to petitioner’s remaining claim for federal habeas relief. 19 | IT IS SO ORDERED. me □ “0 Dated: _ September 23, 2020 L □□ yA 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28