William Zafra Velasco Jr. v. Jeffrey A. Beard

Filing 18

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, AND DISMISSING GROUND ONE by Judge Andre Birotte Jr re: 4 MOTION to Stay Case and Report and Recommendation, 14 . (See document for specifics.) (iva) Modified on 8/18/2016 (iva).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WILLIAM ZAFRA VELASCO,
JR.,
Petitioner,

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v.

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JEFFREY A. BEARD, Secretary,

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Respondent.

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___________________________

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Case No. CV 15-9995-AB (SP)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE, AND
DISMISSING GROUND ONE

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

19 file, and the May 5, 2016 Report and Recommendation of the United States
20 Magistrate Judge. Further, the Court has engaged in a de novo review of those
21 portions of the Report to which petitioner has objected. The Court accepts the
22 findings and recommendation of the Magistrate Judge except as set forth below.
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With his objections to the Report and Recommendation, petitioner filed

24 exhibits reflecting his efforts to exhaust ground one of the Petition in the state courts
25 following his filing of the Petition in this Court. Most recently, petitioner filed a
26 habeas petition in the California Supreme Court on April 29, 2016 in case number
27 S234191, raising ground one. According to information available online on the
28 California Courts Appellate Courts Case Information website, the California

1 Supreme Court denied that habeas petition on June 8, 2016.
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Accordingly, it appears ground one is now exhausted, making the Stay Motion

3 now moot. If for some reason ground one is not yet exhausted, petitioner has still
4 failed to show good cause for a stay under Rhines v. Weber, 544 U.S. 269, 125 S. Ct.
5 1528, 161 L. Ed. 2d 440 (2005), and a stay under Kelly v. Small, 315 F.3d 1063 (9th
6 Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir.
7 2007), would still be futile because ground one is plainly meritless, as set forth in the
8 Report and Recommendation. Either way, the Stay Motion must be denied.
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IT IS THEREFORE ORDERED that petitioner’s Stay Motion is denied, and

10 ground one is dismissed from the Petition with prejudice.
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13 DATED: August 16, 2016

______________________________
HONORABLE ANDRÉ BIROTTE JR.
UNITED STATES DISTRICT JUDGE

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