(HC) Gomez v. Matteson

Filing 9

ORDER ADOPTING 5 Findings and Recommendations; ORDER GRANTING 2 Petitioner's Motion for Stay, Dismissing Grounds Six and Seven from Petition, and Holding Proceedings in Abeyance Pending Exhaustion of State Remedies, signed by District Judge Kirk E. Sherriff on 03/27/2024. Sixty-Day Status Report Deadline. (Maldonado, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALFRED GOMEZ, 12 Petitioner, 13 14 v. 15 16 17 18 GISELLE MATTESON, Acting Warden, Respondent. No. 1:24-cv-00087-KES-SKO (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 5) ORDER GRANTING PETITIONER’S MOTION FOR STAY, DISMISSING GROUNDS SIX AND SEVEN FROM PETITION, AND HOLDING PROCEEDINGS IN ABEYANCE PENDING EXHAUSTION OF STATE REMEDIES [60-DAY STATUS REPORT DEADLINE] 19 20 21 Petitioner Alfred Gomez is a state prisoner proceeding pro se and in forma pauperis with 22 a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a 23 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 24 On January 23, 2024, the assigned magistrate judge issued Findings and 25 Recommendations to grant Petitioner’s motion to stay proceedings pursuant to Kelly v. Small, 26 315 F.3d 1063 (9th Cir. 2003). (Doc. 5.) Those Findings and Recommendations were served 27 upon all parties and contained notice that any objections thereto were to be filed within fourteen 28 (14) days after service. Id. at 3. No objections have been filed, and the deadline to do so has 1 1 2 expired. In accordance with the provisions of 28 U.S.C. § 636 (b)(1), the Court has conducted a de 3 novo review of the case. Having carefully reviewed the entire file, the Court concludes that the 4 magistrate judge’s Findings and Recommendations are supported by the record and proper 5 analysis. 6 Accordingly, 7 1. 8 9 10 The Findings and Recommendations issued on January 23, 2024, (Doc. 5), are adopted in full; 2. Petitioner’s motion for stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), (Doc. 2), is granted; 11 3. Grounds Six and Seven are dismissed from the petition without prejudice; 12 4. The petition is stayed pending exhaustion of state remedies with respect to 13 14 15 16 Grounds Six and Seven; 5. Petitioner is DIRECTED to file a status report within sixty (60) days, and then every sixty (60) days thereafter; and 6. Following final action by the California Supreme Court, Petitioner is DIRECTED 17 to notify the Court by filing a motion to lift the stay along with an amended petition setting forth 18 the exhausted claims within thirty (30) days of the date of the California Supreme Court’s 19 decision. 20 21 22 23 IT IS SO ORDERED. Dated: March 27, 2024 UNITED STATES DISTRICT JUDGE 24 25 26 27 28 2

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