Smith v. Katavich

Filing 15

ORDER ADOPTING 13 FINDINGS AND RECOMMENDATIONS to Deny 9 Motion to Dismiss without Prejudice and to Grant 13 Motion to Stay Petition for Writ of Habeas Corpus signed by District Judge Dale A. Drozd on 02/01/2016. (Flores, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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1:15-cv-00565 DAD MJS HC
ERNEST EDWARD SMITH,

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v.

ORDER ADOPTING FINDINGS AND
Petitioner, RECOMMENDATION TO DENY MOTION
TO DISMISS WITHOUT PREJUDICE AND
TO GRANT MOTION TO STAY PETITION
FOR WRIT OF HABEAS CORPUS

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(Doc. 13)
JOHN N. KATAVICH, Warden,

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Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.

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On April 13, 2015, petitioner filed the instant petition for writ of habeas corpus in this

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court raising five claims for relief. On May 12, 2015, respondent filed a motion to dismiss based

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on petitioner’s alleged failure to exhaust all of the claims presented in the petition by first

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presenting them to the state high court. (Mot. To Dismiss, Doc. No. 9.) Petitioner did not file an

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opposition to that motion. On June 18, 2015, the assigned magistrate judge issued findings and

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recommendations recommending that the motion to dismiss be granted and the petition be

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dismissed unless petitioner elected to proceed only with respect to claim one, the only exhausted

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claim in the instant petition.

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On June 24, 2015, petitioner moved to stay the pending petition while he sought to

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exhaust his claims two through five in state court. (Doc. No. 12). On September 24, 2015, the

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assigned magistrate judge issued an order withdrawing the findings and recommendations

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recommending dismissal of the petition, and issued new findings and recommendations

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recommending that the motion to dismiss be denied without prejudice and that petitioner’s motion

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to stay the petition for writ of habeas corpus pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir.

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2002) and King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) be granted. (Doc. No. 13.)

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a

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de novo review of the case. Having carefully reviewed the entire file, the court concludes that the

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magistrate judge's findings and recommendation is supported by the record and proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:
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The Findings and Recommendations issued on September 24, 2015, are ADOPTED

IN FULL;
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Petitioner’s motion for stay (Doc. No. 12) be granted pursuant to the decisions in

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Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) and King v. Ryan, 564 F.3d 1133 (9th Cir. 2009),

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and the instant action be administratively stayed;

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3.

Petitioner is directed to file a motion to lift the stay within 30 days of the California

Supreme Court issuing a final order resolving petitioner's unexhausted claims; and

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Petitioner is forewarned that failure to comply with this Order may result the dismissal of

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the petition. See Local Rule 110.

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IT IS SO ORDERED.

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Dated:

February 1, 2016
UNITED STATES DISTRICT JUDGE

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