(HC) Miles v. Sullivan ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GENNEL EDWARD MILES, JR., No. 2:19-CV-00377-KJM-DMC-P 12 Petitioner, 13 v. ORDER 14 W.J. SULLIVAN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding with retained counsel, brings this petition 18 for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge as provided by Eastern District of California local rules. 20 On September 12, 2022, the Magistrate Judge filed findings and recommendations, 21 which were served on the parties and which contained notice that the parties may file objections 22 within fourteen days. No objections to the findings and recommendations have been filed. 23 The court presumes that any findings of fact are correct. See Orand v. United 24 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 25 reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations 26 of law by the magistrate judge are reviewed de novo by both the district court and [the appellate] 27 ///// 28 1 | court....”). Having reviewed the file, the court finds the findings and recommendations to be 2 || supported by the record and by the proper analysis. The court adds petitioner has shown good 3 || cause for a stay pending exhaustion of claims in state court, as petitioner “lacked the effective 4 | assistance of counsel during state postconviction review proceedings.” Cage v. Montgomery, 812 5 || F. Appx. 679, 680 (9th Cir. 2020); see also Rhines v. Weber, 544 U.S. 269, 277 (2005) (stating 6 || the court must determine good cause before the court exercises its discretion to issue a stay-and- 7 || abeyance order). 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The findings and recommendations filed on September 12, 2022, ECF 10 || No. 55, are adopted in full; 11 2. Petitioner’s unopposed motion for an order staying this case, ECF No. 52, 12 | is granted; 13 3. Within 60 days of the date of this order, and every 60 days thereafter until 14 | further order of this Court, petitioner shall file a report on the status of exhaustion proceedings in 15 || state court; and 16 4. The matter is referred back to the assigned Magistrate Judge to monitor the 17 || case and for further proceedings, including lifting the stay upon completion of state court 18 || exhaustion proceedings. 19 | DATED: January 12, 2023. 20 21 CHIEF ED STATES DISTRICT JUDGE 23 24 25 26 27 28