Henderson v. Dae Henderson Jr Trust

Filing 26

FINDINGS and RECOMMENDATION to Deny Motion to Stay Proceedings and Compel Arbitration, signed by Magistrate Judge Sheila K. Oberto on 5/14/18. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAE HENDERSON, Jr.,

No. 1:18-cv-00143-AWI-SKO HC

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Petitioner,
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v.
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HUNTER ANGLEA, Warden of Sierra
Conservation Center
Respondent.

FINDINGS AND RECOMMENDATION
TO DENY MOTION TO STAY
PROCEEDINGS AND COMPEL
ARBITRATION
(Doc. 21)

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Petitioner, Dae Henderson, Jr., is a state prisoner proceeding pro se with a petition for writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. Currently before the Court is Petitioner’s motion

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to stay proceedings to compel arbitration. Respondent has not filed a response to the motion.
Petitioner requests the Court stay these proceedings and compel Respondent to “perform

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under agreement to arbitrate.” (Doc. 21 at 1.) Respondent contends the claims in this case are
“subject to arbitration” and Respondent is “in default in proceeding under arbitration.” Id. at 2.
The Supreme Court has held that "the essence of habeas corpus is an attack by a person in

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custody upon the legality of that custody." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A

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petitioner must demonstrate that the adjudication of his claim in state court "resulted in a decision

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that was contrary to, or involved an unreasonable application of, clearly established Federal law,

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as determined by the Supreme Court of the United States; or resulted in a decision that was based

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on an unreasonable determination of the facts in light of the evidence presented in the State court

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proceeding." 28 U.S.C. §§ 2254(d)(1), (2).
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In his second amended petition for writ of habeas corpus, Petitioner claims the prosecutor

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in his criminal case initiated criminal proceedings without presenting an indictment to a Grand

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Jury. (Doc. 14 at 4.) As Petitioner’s claim that the state violated his constitutional rights is not

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subject to arbitration, the Court recommends denying Petitioner’s motion to stay proceedings and

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compel arbitration.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty
(30) days after being served with these Findings and Recommendations, either party may file

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written objections with the Court. The document should be captioned AObjections to Magistrate

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Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and

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filed within fourteen (14) days after service of the objections. The parties are advised that failure

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to file objections within the specified time may constitute waiver of the right to appeal the District

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Court's order.

Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

May 14, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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