Salas v. McDowell

Filing 19

ORDER ADOPTING 15 FINDINGS AND RECOMMENDATIONS to Deny Petitioner's 14 Motion to Stay and Abey Proceedings signed by District Judge Dale A. Drozd on 04/12/2018. Fourteen-Day Deadline.(Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BENITO SANCHEZ SALAS,

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No. 1:15-cv-00766-DAD-SKO (HC)

Petitioner,
v.
NEIL MCDOWELL,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DENY
PETITIONER’S MOTION TO STAY AND
ABEY PROCEEDINGS

Respondent.
(Doc. Nos. 14, 15)

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On November 3, 2017, petitioner, a state prisoner proceeding with retained counsel, filed

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a pro se motion to stay and abey these proceedings. (Doc. No. 14) The motion was referred to a

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United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 302.

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On December 12, 2017, the assigned magistrate judge issued findings and

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recommendations recommending that the motion for stay and abeyance be denied because it was

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filed by petitioner pro se even though he is represented by counsel. (Doc. No. 15.) However,

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because petitioner alleged that his counsel, attorney Fay Arfa, was no longer in communication

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with him, it was also recommended that the court order attorney Arfa to establish contact with

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petitioner and notify the court that she had done so. (Id. at 5.)

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The findings and recommendations provided that petitioner could file objections within 30
days. On December 13, 2017, petitioner’s counsel of record, attorney Arfa filed objections in
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which she contends that petitioner’s motion should be “wholly rejected” because hybrid

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representation for petitioner has not been authorized by the court and the court therefore should

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not consider any motion petitioner files on his own behalf. (Doc. 16 at 4.) Respondent also filed

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objections noting that “there appears no valid basis to consider a ‘motion’ by Petitioner for stay or

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abeyance, for lack of presentation by counsel by whom Petitioner has chosen to be represented.”

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(Doc. 17.)

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

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record as a whole, including both attorney Arfa’s and respondent’s objections to the findings and

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recommendations. The objections urge denial of the motion because it was not filed by

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petitioner’s counsel of record, a position which is consistent with the findings and

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recommendations issued by the magistrate judge. The magistrate judge also recommended that

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attorney be ordered to contact petitioner and report back to the court in an abundance of caution,

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based on representations that petitioner had made in his pro se motion. The court finds the

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findings and recommendations to be supported by the factual record and proper legal analysis.

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Accordingly it is hereby ordered that:

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1. The findings and recommendations issued December 12, 2017 (Doc. No. 15) are

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adopted in full;

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2. Petitioner’s pro se motion for stay and abeyance of these proceedings (Doc. No.

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14) is denied;

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3. Counsel for petitioner, attorney Arfa, shall establish contact with petitioner within

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7 days of the date of this order; and

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4. Within 14 days of contacting petitioner, counsel for petitioner shall notify the court

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in writing as to whether the issues raised by petitioner in his pro se motion with

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respect to representation have been resolved.

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IT IS SO ORDERED.
Dated:

April 12, 2018
UNITED STATES DISTRICT JUDGE

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