Casillas v. Secretary of Corrections

Filing 15

ORDER ADOPTING 11 FINDINGS AND RECOMMENDATIONS Recommending Denial of the 2 Motion for an Order of Stay and Abeyance signed by Chief Judge Lawrence J. O'Neill on 06/22/2017. (Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 OMAR CASILLAS, Petitioner, 12 v. 13 14 Case No. 1:17-cv-00511-LJO-SKO HC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF THE MOTION FOR AN ORDER OF STAY AND ABEYANCE SECRETARY OF CORRECTIONS, Respondent. 15 (Doc. 11) 16 Petitioner Omar Casillas is a state prisoner proceeding pro se with a petition for writ of 17 18 habeas corpus pursuant to 28 U.S.C. § 2254. The Court referred the matter to the Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 20 On May 11, 2017, the Magistrate Judge filed findings and recommendations in which she 21 recommended that the Court deny the motion for stay and abeyance. The Magistrate Judge first 22 23 found that the state court had already addressed the petition’s first three claims in Petitioner’s direct 24 appeal, rendering those claims exhausted. Only the fourth claim, which alleged ineffective 25 assistance of appellate counsel, was unexhausted. Because the fourth claim lacked merit, the 26 Magistrate Judge recommended that the Court deny the motion for stay and abeyance as to ground 27 28 four. 1 The findings and recommendations, which were served on Petitioner on the same date, 1 2 provided that Petitioner could file objections within thirty days. On June 12, 2017, Petitioner filed 3 objections in which he sought to establish that his motion for stay and abeyance was timely. The 4 objections did not address the Magistrate Judge’s finding that an order of stay and abeyance was 5 inappropriate in light of ground four’s lack of merit. 6 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), having carefully reviewed the 7 entire file de novo, and considered Petitioner's objections, the Court finds that the findings and 8 9 recommendations are supported by the record and proper analysis. 10 Accordingly, the Court hereby ORDERS: 11 1. The findings and recommendations filed May 11, 2017, are adopted in full; 12 2. Petitioner’s motion for stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269, 13 275 (2005), is denied; 14 3. Within thirty (30) days of this order, Petitioner may file an amended petition for writ 15 of habeas corpus pursuant to 28 U.S.C. § 2254, including the only first three grounds 16 for relief alleged in the petition filed April 5, 2017 (Doc. 1). The amended petition 17 18 shall not include the unexhausted fourth ground for relief alleging ineffective 19 assistance of appellate counsel. 20 4. 21 Petitioner shall sign the amended petition under penalty of perjury where indicated. The amended petition must be complete in itself. This means that the amended 22 petition may not refer back to any portion of the original petition filed in this case but 23 must include all pleadings and any appendices which Petitioner intends to incorporate 24 within the amended petition. 25 26 /// 27 /// 28 2 1 5. this order, the case will be dismissed without further notice for lack of prosecution. 2 3 If Petitioner fails to file an amended petition within thirty (30) days from the date of 6. The Court DECLINES to issue a certificate of appealability. 4 5 IT IS SO ORDERED. 6 Dated: 7 /s/ Lawrence J. O’Neill _____ June 22, 2017 UNITED STATES CHIEF DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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