(HC) Caylor v. Covello ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY MICHAEL CAYLOR, No. 2:22-cv-01896-DJC-CKD (HC) 12 Petitioner, 13 v. ORDER 14 P. COVELLO, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, filed an application for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On May 31, 2023, the Magistrate Judge filed findings and recommendations 21 herein which were served on all parties and which contained notice to all parties that 22 any objections to the findings and recommendations were to be filed within fourteen 23 days. Neither party filed objections to the findings and recommendations. 24 The Court presumes that any findings of fact are correct. See Orand v. United 25 States, 602 F.2d 207, 208 (9th Cir. 1979). The Magistrate Judge’s conclusions of law 26 are reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 27 (9th Cir. 1983). The Court has reviewed the file and finds the findings and 28 recommendations to be supported by the record and by the Magistrate Judge’s 1 | analysis. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The findings and recommendations filed May 31, 2023 are adopted. 4 2. Petitioner's motion for a stay (ECF No. 5) is denied to the extent that it 5 requests a Rhines stay, but granted to the extent that it seeks a Kelly stay. 6 3. Respondent's motion to dismiss (ECF No. 14) is denied without prejudice to 7 raising the statute of limitations defense once the stay of this case is lifted. 8 4. Petitioner is directed to file an amended § 2254 petition within 30 days from 9 the date of this order which deletes claims three and four of his original § 2254 10 petition. 11 5. Petitioner shall initiate proceedings in state court within 180 days of this 12 Order. Failure to do so may result in the Court lifting the stay and ordering the 13 petition to proceed on the exhausted claims. 14 6. Petitioner is further directed to file a status report with the court every 90 15 days indicating what step(s) he has taken to exhaust his state court remedies. 16 7. Within 30 days of the completion of state habeas review by the California 17 Supreme Court, petitioner is ordered to file a motion to lift the stay of this case 18 along with an amended § 2254 petition containing all exhausted claims for 19 relief. 20 IT IS SO ORDERED. 22 | Dated: _September 2, 2023 _ Beek | bbeatie Hon. Daniel labretta 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28