(HC)West v. Attorney General of the State of California ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH JAMES WEST, No. 1:22-cv-00172-ADA-CDB (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO GRANT 13 v. PETITIONER’S UNOPPOSED MOTION FOR STAY 14 ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, (ECF Nos. 30, 31) 15 Respondent. 16 17 18 Petitioner Kenneth James West (“Petitioner”) is a state prisoner proceeding pro se with a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) On July 22, 2022, 20 Respondent filed a motion to dismiss the first amended petition. (ECF No. 19.) On November 30, 21 2022, the assigned Magistrate Judge issued findings and recommendations granting Respondent’s 22 motion and dismissing, without prejudice, Petitioner’s first amended petition. (ECF No. 27). On 23 March 7, 2023, the Court issued an order adopting the assigned Magistrate Judge’s findings and 24 recommendations and informed Petitioner he could request a stay of the petition in this Court to 25 exhaust claims in state court. (ECF No. 29.) 26 On March 31, 2023, Petitioner filed a motion to stay this action. (ECF No. 30.) Respondent 27 did not file a response to Petitioner’s motion to stay. On April 21, 2023, the assigned Magistrate 28 Judge issued findings and recommendations granting Petitioner’s motion to stay and holding these 1 | proceedings in abeyance while Petitioner exhausted his claims in state court. (ECF No. 31.) The 2 | findings and recommendations advised Respondent that he must file any objections within 14 days 3 | after service of the order and that the “failure to file objections within the specified time may waive 4 | the right to appeal the District Court’s order.” (/d. at 5 (citing Wilkerson v. Wheeler, 772 F.3d 834, 5 | 839 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).) Respondent did not 6 | file objections or any other response to the findings and recommendations, and the deadline to do 7 | so has passed. On May 5, 2023, Petitioner filed a notice of compliance of order to timely file a 8 | petition in California state court. (ECF No. 32.) 9 Pursuant to 28 U.S.C. § 636(b)(1)(C), and Local Rule 304, this Court conducted a de novo 10 | review of this case. Having carefully reviewed the entire matter, this Court concludes the findings 11 | and recommendations are supported by the record and by proper analysis. 12 Accordingly, 13 1. The April 21, 2023, Findings and Recommendations, (ECF No. 31), are adopted in full; 14 2. Petitioner’s motion for stay, (ECF No. 30), is GRANTED and these proceedings will be 15 held in abeyance while Petitioner exhausts his unexhausted claims in state court; and 16 3. Petitioner is directed to file in this Court, within 30 days after the filing date of the state 17 court’s order finally resolving Petitioner’s unexhausted claims, a motion to lift the stay in 18 this proceeding. 19 20 91 | TIS SO ORDERED. 22 Dated: _ June 30, 2023 UNITED f£TATES DISTRICT JUDGE 24 25 26 27 28