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)

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