(HC) Roessler v. Covello ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL LEE ROESSLER, No. 2:19-cv-02422-KJM-JDP (HC) 12 Petitioner, 13 v. ORDER 14 PATRICK COVELLO, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding with counsel, has filed this application for a writ of 18 habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Respondent moved to dismiss the petition. ECF No. 13. On August 9, 2021, the 21 magistrate judge filed findings and recommendations, ECF No 41, which were served on all 22 parties and which contained notice to all parties that any objections to the findings and 23 recommendations were to be filed within fourteen days. Respondent has filed objections to the 24 findings and recommendations. ECF No. 42 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 26 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 27 findings and recommendations to be supported by the record and by the proper analysis. 28 ///// ] Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed August 9, 2021, are adopted in part; 3 2. Respondent’s motion to dismiss, ECF No. 13, is granted in part; 4 3. Petitioner’s third and fifth claims are dismissed without prejudice as unexhausted; and 5 4. The court refers the matter back to the magistrate judge for him to expand counsel’s 6 | appointment as contemplated,' and for all further pretrial proceedings. 7 || DATED: September 28, 2021. 10 CHIEF ED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 | — SSS ‘Tn addition to general briefing on a stay, counsel may wish to clarify the timeline of petitioner’s 25 appeals and whether petitioner’s pending appeal in state court prevents his judgment and sentence 26 || from being final. See Burton v. Stewart, 549 U.S. 147, 156-57 (2007) (a “limitations period d[oes] not begin until both his conviction and sentence ‘became final by the conclusion of direct 27 || review or the expiration of the time for seeking such review’”). 28