Dustin v. Pffeiffer et al

Filing 29

ORDER to Supplement the Record Regarding Exhaustion; ORDER Vacating June 27, 2017 26 Findings and Recommendation signed by Magistrate Judge Stanley A. Boone on 08/16/2017. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DALE OWEN DUSTIN, 12 Petitioner, ORDER TO SUPPLEMENT THE RECORD REGARDING EXHAUSTION v. 13 14 Case No. 1:16-cv-01708-DAD-SAB-HC ORDER VACATING JUNE 27, 2017 FINDINGS AND RECOMMENDATION PFFEIFFER, 15 Respondent. (ECF No. 26) 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 On June 27, 2017, the undersigned issued findings and recommendation recommending 20 that Respondent’s motion to dismiss be granted and the petition be dismissed for failure to 21 exhaust. (ECF No. 26). On July 17, 2017, Petitioner filed objections to the findings and 22 recommendation, arguing that he in fact filed petitions in the Kern County Superior Court, 23 California Court of Appeals, Fifth Appellate District, and the California Supreme Court. (ECF 24 No. 27). Respondent has not filed a reply to Petitioner’s objections. 25 26 27 Accordingly, the Court HEREBY ORDERS: 1. The Findings and Recommendation issued on June 27, 2017 (ECF No. 26) is VACATED; 28 /// 1 1 2. Within FORTY-FIVE (45) days of the date of service of this order, the parties shall supplement the record with respect to exhaustion; 2 3 3. Replies shall be filed within THIRTY (30) days after service of the supplements. 4 5 IT IS SO ORDERED. 6 Dated: August 16, 2017 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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