Anderson, et al., v. Sisto

Filing 18

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 10/22/09 ordering that 17 Motion is DENIED as moot; recommending that 15 Motion to Dismiss be denied as moot and respondent ordered to to submit answer within 60 days of court's order. Objections due within 20 days.(Owen, K)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. D.K. SISTO, Respondent. / Petitioner is a state prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254. Respondent has filed a motion to dismiss for petitioner's failure to exhaust state court remedies. See docket no. 15. In opposition, petitioner conceded that he had failed to file a petition before the California Supreme Court, a prerequisite to this court's review of his petition under § 2254. See Opposition, docket no. 16. Petitioner requested that the court hold this case in abeyance instead of dismissing it for failure to exhaust. Id. Before the court decided whether to dismiss or hold this case in abeyance, however, the petitioner submitted proof that his application before the California Supreme Court had been denied. See docket no. 17. Therefore the motion to dismiss for failure to exhaust state court ///// 1 ORDER AND FINDINGS AND RECOMMENDATIONS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA CRAIG ANDERSON, Petitioner, No. CIV S-08-1751 FCD KJM P

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

remedies should be denied as moot and respondent ordered to file an answer to the petition within sixty days of the entry of the court's order. Accordingly, IT IS HEREBY ORDERED that the "motion that the court take this case out of abeyance" (docket no. 17) is denied as moot. IT IS HEREBY RECOMMENDED that the motion to dismiss (docket no. 15) be denied as moot and respondent ordered to submit an answer to the petition within sixty days of any entry of the court's order denying the motion to dismiss. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: October 22, 2009.

4 ande1751.mot.dismiss

2