(HC) Torres v. Espinoza ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COLLEEN IVA-MARIE TORRES, No. 2:19-cv-00093-DAD-CKD (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING 14 JANEL ESPINOZA, PETITIONER’S MOTIONS FOR LEAVE TO FILE A FIRST AMENDED PETITION AND 15 Respondent. FOR STAY AND ABEYANCE 16 (Doc. Nos. 38, 41) 17 18 Petitioner Colleen Iva-Marie Torres proceeds through appointed counsel with a petition 19 for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. The matter was referred to a 20 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On January 4, 2023, the assigned magistrate judge issued findings and recommendations 22 recommending that petitioner’s motion for leave to file an amended petition and for a stay and 23 abeyance of these federal habeas proceedings pending exhaustion of unexhausted claims (Doc. 24 No. 38) be granted. (Doc. No. 41.) As noted in the pending findings and recommendations, on 25 December 16, 2022, respondent filed a statement of non-opposition to the granting of petitioner’s 26 motion. (Doc. Nos. 40, 41.) The January 4, 2023 findings and recommendations were served on 27 all parties and contained notice that any objections thereto were to be filed within fourteen (14) 28 ///// 1 | days from the date of service. (Doc. No. 41 at 4.) No objections have been filed and the time for 2 | doing so has passed. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 4 | court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 5 | court finds the pending findings and recommendations to be supported by the record and proper 6 | analysis. Accordingly, petitioner’s motion for leave to file an amended petition and motion for a 7 | stay and abeyance of these federal habeas proceedings pending the exhaustion of unexhausted 8 | claims in state court will be granted. 9 For the reasons explained above: 10 1. The findings and recommendations filed on January 4, 2023 (Doc. No. 41) are 11 adopted in full; 12 2. Petitioner’s motion for leave to file a first amended petition pursuant to 28 U.S.C. 13 § 2254 (Doc. No. 38) is granted, rendering the first amended petition (Doc. No. 14 39) the operative pleading before the court; 15 3. Petitioner’s motion for a stay and abeyance pursuant to the decision in Rhines v. 16 Weber, 544 U.S. 269 (2005), is granted; 17 4. The Clerk of the Court is directed to administratively stay these proceedings 18 pending petitioner’s exhaustion of her unexhausted claims in state court; 19 5. Petitioner’s counsel is directed to file a notice of exhaustion within 30 days of the 20 completion of state habeas corpus proceedings; and 21 6. This matter be referred to the magistrate judge for entry of a briefing schedule on 22 petitioner’s first amended application for relief under 28 U.S.C. § 2254 following 23 the exhaustion of her unexhausted claims in state court. 24 IT IS SO ORDERED. * | Dated: _ April 10, 2023 Dab A. 2, el 26 UNITED STATES DISTRICT JUDGE 27 28