(HC) Popke v. Andes

Filing 17

ORDER ADOPTING in Full 15 Findings and Recommendations, Dismissing Unexhausted Claims, and Allowing Petitioner to Proceed with his Exhausted Claim signed by District Judge Jennifer L. Thurston on 03/12/2025. (Deputy Clerk EF)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DOUGLAS LOUIS POPKE,

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Petitioner,

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v.

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CHANCE ANDES,

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Respondent.

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Case No.: 1:24-cv-0779 JLT EPG
ORDER ADOPTING IN FULL THE FINDINGS
AND RECOMMENDATIONS, DISMISSING
UNEXHAUSTED CLAIMS, AND ALLOWING
PETITIONER TO PROCEED WITH HIS
EXHAUSTED CLAIM
(Doc. 15)

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Douglas Louis Popke is a state prisoner proceeding pro se with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, raising three grounds for relief: (1) ineffective assistance of

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counsel; (2) prosecutorial misconduct; and (3) insufficient evidence to support conviction due to Fourth

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Amendment violation. (Doc. 1 at 4-5.) The magistrate judge found Petitioner did not exhaust his first

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two grounds for relief before the California Supreme Court. (Doc. 8; see also Doc. 15 at 2.) Petitioner

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elected to proceed only with his exhausted ground. (Doc. 13.) Therefore, the magistrate judge

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recommended the Court dismiss the unexhausted grounds and permit Petitioner to “proceed with the

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exhausted sufficiency of the evidence claim.” (Doc. 15 at 3.)

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The Court served the Findings and Recommendations on Petitioner and notified him that any

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objections were due within 14 days. (Doc. 15 at 3.) The Court advised him that the “failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.” (Id. at 4,

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citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Petitioner did not file objections,
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and the time to do so has passed.
According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. Having

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carefully reviewed the matter, the Court concludes the Findings and Recommendations are supported

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by the record and proper analysis. Thus, the Court ORDERS:

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1.

The Findings and Recommendations dated February 13, 2025 (Doc. 15) are
ADOPTED in full.

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2.

The unexhausted first and second grounds for relief are DISMISSED.

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3.

Petitioner SHALL proceed only with the third ground for relief related to sufficiency
of the evidence.

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The matter is referred the magistrate judge for further proceedings.

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IT IS SO ORDERED.
Dated:

March 12, 2025

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