Madrigal v. Macomber

Filing 26

ORDER DIRECTING Clerk of Court to Serve Findings and Recommendation 24 and Order Granting Motion for Extension of Time to File Traverse 22 on Petitioner, signed by Magistrate Judge Stanley A. Boone on 7/28/2015. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ISCANDER FRANCISCO MADRIGAL,

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Case No. 1:14-cv-01436-LJO-SAB-HC

Petitioner,

ORDER DIRECTING CLERK OF COURT
TO SERVE FINDINGS AND
RECOMMENDATION (ECF No. 24) AND
ORDER GRANTING MOTION FOR
EXTENSION OF TIME TO FILE
TRAVERSE (ECF No. 22) ON PETITIONER

v.
JEFF MACOMBER,

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Respondent.

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Petitioner is a state prisoner proceeding pro se in a habeas corpus action pursuant to 28

17 U.S.C. § 2254.
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On May 21, 2015, the Court issued a Findings and Recommendation recommending that

19 Petitioner’s motion to stay the petition be denied and that the petition be dismissed without
20 prejudice. (ECF No. 24). The Findings and Recommendation informed Petitioner that he may
21 move to withdraw the unexhausted claims, file objections to the Findings and Recommendation,
22 or file a motion for a stay pursuant to Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2002),
23 within thirty days of the service of the Findings and Recommendation. Upon a review of the
24 docket, it appears that Petitioner was not served with the Findings and Recommendation or the
25 Court’s February 6, 2015 Order Granting Petitioner’s Motion for Extension of Time to File a
26 Traverse. The Court notes that although Petitioner did not receive the Court’s February 6, 2015
27 order, he filed a motion for stay and abeyance on February 27, 2015.
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Therefore, the Court will direct the Clerk of Court to serve copies of the May 21, 2015
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1 Findings and Recommendation and February 6, 2015 Order Granting Petitioner’s Motion for
2 Extension of Time on Petitioner.

As Petitioner has not yet received the Findings and

3 Recommendation and the Court is serving Petitioner with a copy of the Findings and
4 Recommendation, Petitioner has thirty (30) days from the date of service of the Findings and
5 Recommendation to move to withdraw the unexhausted claims, file objections to the Findings
6 and Recommendations, or file a motion for a stay pursuant to Kelly v. Small, 315 F.3d 1063,
7 1070-71 (9th Cir. 2002).
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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of Court is directed to serve a copy of the May 21, 2015 Findings and

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Recommendation (ECF No. 24) and the February 6, 2015 Order Granting Petitioner’s

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Motion for Extension of Time to File a Traverse (ECF No. 22) on Petitioner;

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2. Petitioner is granted thirty (30) days from the date of service of the Findings and

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Recommendation to move to withdraw the unexhausted claims, file objections to the

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Findings and Recommendation, or file a motion for a stay pursuant to Kelly v. Small,

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315 F.3d 1063, 1070-71 (9th Cir. 2002); and

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3. Any reply to the objections or a motion for a stay pursuant to Kelly shall be served

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and filed within fourteen (14) days after service of the objections or the motion for a

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stay pursuant to Kelly.

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IT IS SO ORDERED.

21 Dated:

July 28, 2015

UNITED STATES MAGISTRATE JUDGE

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