Salas v. McDowell
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
BENITO SANCHEZ SALAS,
No. 1:15-cv-00766-DAD-SKO (HC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DENY
PETITIONER’S MOTION TO STAY AND
(Doc. Nos. 14, 15)
On November 3, 2017, petitioner, a state prisoner proceeding with retained counsel, filed
a pro se motion to stay and abey these proceedings. (Doc. No. 14) The motion was referred to a
United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 302.
On December 12, 2017, the assigned magistrate judge issued findings and
recommendations recommending that the motion for stay and abeyance be denied because it was
filed by petitioner pro se even though he is represented by counsel. (Doc. No. 15.) However,
because petitioner alleged that his counsel, attorney Fay Arfa, was no longer in communication
with him, it was also recommended that the court order attorney Arfa to establish contact with
petitioner and notify the court that she had done so. (Id. at 5.)
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
which she contends that petitioner’s motion should be “wholly rejected” because hybrid
representation for petitioner has not been authorized by the court and the court therefore should
not consider any motion petitioner files on his own behalf. (Doc. 16 at 4.) Respondent also filed
objections noting that “there appears no valid basis to consider a ‘motion’ by Petitioner for stay or
abeyance, for lack of presentation by counsel by whom Petitioner has chosen to be represented.”
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has reviewed the
record as a whole, including both attorney Arfa’s and respondent’s objections to the findings and
recommendations. The objections urge denial of the motion because it was not filed by
petitioner’s counsel of record, a position which is consistent with the findings and
recommendations issued by the magistrate judge. The magistrate judge also recommended that
attorney be ordered to contact petitioner and report back to the court in an abundance of caution,
based on representations that petitioner had made in his pro se motion. The court finds the
findings and recommendations to be supported by the factual record and proper legal analysis.
Accordingly it is hereby ordered that:
1. The findings and recommendations issued December 12, 2017 (Doc. No. 15) are
adopted in full;
2. Petitioner’s pro se motion for stay and abeyance of these proceedings (Doc. No.
14) is denied;
3. Counsel for petitioner, attorney Arfa, shall establish contact with petitioner within
7 days of the date of this order; and
4. Within 14 days of contacting petitioner, counsel for petitioner shall notify the court
in writing as to whether the issues raised by petitioner in his pro se motion with
respect to representation have been resolved.
IT IS SO ORDERED.
April 12, 2018
UNITED STATES DISTRICT JUDGE
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