(HC) Gosztyla v. Covello ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD GOSZTYLA, Case No. 2:23-cv-00328-KJM-JDP (HC) 12 Petitioner, 13 v. ORDER 14 P. COVELLO, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas 18 corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as 19 provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 31, 2023, the magistrate judge filed findings and recommendations, which were 21 served on all parties and which contained notice to all parties that any objections to the findings 22 and recommendations were to be filed within fourteen days. No objections to the findings and 23 recommendations. 24 The court presumes that any findings of fact are correct. See Orand v. United States, 25 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed 26 de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law 27 by the magistrate judge are reviewed de novo by both the district court and [the appellate] court 28 ///// 1 | ....°). Having reviewed the file, the court finds the findings and recommendations to be 2 || supported by the record and by the proper analysis. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The findings and recommendations filed July 31, 2023, are adopted in full. 5 2. The motion to stay, ECF No. 16, is GRANTED and petitioner is granted a Kelly stay. 6 3. Petitioner is directed to: (1) file an amended petition that contains only his exhausted 7 || claims, and (2) move to amend his new petition once he exhausts his claims in state court. 8 4. Respondent’s motion to dismiss, ECF No. 12, is DENIED without prejudice. 9 5. This matter is referred back to the assigned magistrate judge for all further pretrial 10 || proceedings. 11 | DATED: September 25, 2023. 12 13 4 CHIEF ED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28