(HC) West v. Cates ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JERRY WEST, JR., No. 2:21-cv-00410-KJM-JDP (HC) 11 Petitioner, 12 v. ORDER 13 BRIAN CATES, 14 Respondent. 15 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 17 corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as 18 provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On May 17, 2022, the magistrate judge filed findings and recommendations, which were 20 served on petitioner and which contained notice to petitioner that any objections to the findings 21 and recommendations were to be filed within fourteen days. Petitioner has not filed objections to 22 the findings and recommendations. 23 The court presumes that any findings of fact are correct. See Orand v. United States, 24 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed 25 de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law 26 by the magistrate judge are reviewed de novo by both the district court and [the appellate] court 27 . . . .”). Having reviewed the file, the court finds the findings and recommendations to be 28 supported by the record and by the proper analysis. ] Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed May 17, 2022, are adopted in full; 3 2. The motion to stay, ECF No. 10, is granted and petitioner is granted a Kelly stay; 4 3. Petitioner is directed to: (1) file an amended petition that contains only his exhausted 5 || claims, and (2) move to amend his new petition once he exhausts his claims in state court; and 6 4. This matter is referred back to the assigned magistrate judge for all further pretrial 7 || proceedings. 8 | DATED: September 14, 2022. 9 10 ( ti / ¢ q_/ CHIEF NT] ED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28