Jose Soto v. K Clark

Filing 17

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE signed by Judge David O. Carter. IT THEREFORE IS ORDERED that respondent's Motion to Dismiss is GRANTED with leave to amend. Petitioner is given 30 days to either 1) file an amended petition deleting Ground Four, or 2) file an application for a stay and abeyance. [See Order for details.] (ch)

1 2 3 4 5 6 7 8 9 10 JOSE SOTO, 11 12 v. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION ) ) ) ) ) ) ) ) ) ) No. CV 07-4048 DOC (FFM) ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Petitioner,

13 K. CLARK, Warden, 14 Respondent. 15 16

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records

17 and files herein, and the Report and Recommendation of the United States Magistrate 18 Judge. The Court concurs with and adopts the findings, conclusions and 19 recommendations of the Magistrate Judge. 20 IT THEREFORE IS ORDERED that respondent's Motion to Dismiss is

21 GRANTED with leave to amend. Petitioner is given 30 days to either (1) file an 22 amended petition deleting Ground Four or (2) file an application for a stay and 23 abeyance. 24 Any such application for stay must demonstrate that: (A) there was good cause

25 for petitioner's failure to exhaust Ground Four in state courts; (B) Ground Four is 26 potentially meritorious; and (C) petitioner did not engage in intentionally dilatory 27 litigation tactics. See Rhines, 544 U.S. at 277-78. 28 / / /

1

If petitioner does apply for a stay and abeyance, respondent must file his

2 opposition (if any) to such application within 20 days of receipt thereof. 3 4 5 DATED: October 24, 2008 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
2

DAVID O. CARTER United States District Judge