Adrian Berumen v. Roberto A. Arias

Filing 27

ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION by Judge Mark C. Scarsi re: Report and Recommendation (Issued), 26 , IT IS ORDERED: 1. The Report and Recommendation is accepted. 2. Respondent's Motion to Dismiss (ECF 18 ) is denied in part, to the extent it rests on the timeliness of the Petition. 3. Respondent's Motion to Dismiss (ECF 18 ) is granted in part, to the extent it rests on the argument that Ground Four of the Petition is unexhausted. 4. Within 30 d ays of the date of this Order, Petitioner shall either: (a) file a notice of withdrawal of his unexhausted Ground Four and election to proceed solely on the exhausted claims; or (b) file a motion to stay these proceedings pursuant to Rhines v. Weber , 544 U.S. 269 (2005), or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), or (c) seek other appropriate relief. 5. Failure to take one of the foregoing actions within 30 days of the date of this Order, may result in the dismissal of this action without prejudice for failure to prosecute and/or failure to exhaust state remedies. (es)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 ADRIAN BERUMAN, 13 14 No. 2:24-cv-01234-MCS-BFM v. ORDER ACCEPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ROBERTO A. ARIAS, Warden 15 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the 19 records and files herein, and the Magistrate Judge’s Report and 20 Recommendation. No objections to the Report and Recommendation were filed. 21 The Court accepts the recommendations of the Magistrate Judge. 22 ACCORDINGLY, IT IS ORDERED: 23 1. The Report and Recommendation is accepted. 24 2. Respondent’s Motion to Dismiss (ECF 18) is denied in part, to the 25 26 extent it rests on the timeliness of the Petition. 3. Respondent’s Motion to Dismiss (ECF 18) is granted in part, to 27 the extent it rests on the argument that Ground Four of the Petition is 28 unexhausted. 1 4. (a) file a notice of withdrawal of his unexhausted Ground Four and 2 3 Within 30 days of the date of this Order, Petitioner shall either: election to proceed solely on the exhausted claims; or 4 (b) file a motion to stay these proceedings pursuant to Rhines v. 5 Weber, 544 U.S. 269 (2005), or Kelly v. Small, 315 F.3d 1063 (9th Cir. 6 2003), or (c) seek other appropriate relief. 7 8 9 10 11 12 13 14 15 16 5. Failure to take one of the foregoing actions within 30 days of the date of this Order, may result in the dismissal of this action without prejudice for failure to prosecute and/or failure to exhaust state remedies. 6. The Court Clerk shall serve this Order on all counsel or parties of record. 2FWREHU DATED: ________________________ _______________________________________ HONORABLE MARK C. SCARSI UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2

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