Isom v. Small

Filing 17

ORDER signed by Judge Garland E. Burrell, Jr on 3/3/2010 ORDERING that the 14 findings and recommendations filed February 1, 2010, are adopted in full. Petitioner's 3 motion to stay, filed on August 24, 2009 is to be granted only if petitio ner files, within 28 days, an amended petition containing only fully exhausted claims, that is, absent claim 2 of the original petition. Should petitioner not elect to file an exhausted-claims-only petition and to further pursue a stay, this matter will proceed on the original petition with the unexhausted claim 2 stricken from the petition.(Duong, D)

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. LARRY SMALL, Warden, Respondent. / Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262. On February 1, 2010, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty-one days. Petitioner has filed objections to the findings and recommendations. Petitioner has also filed a motion to dismiss his claim 2. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JEFFREY ALLEN ISOM, Petitioner, No. CIV S-09-2350 GEB GGH P

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proper analysis. Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations filed February 1, 2010, are adopted in full; and 2. Petitioner's motion to stay, filed on August 24, 2009 (Docket # 3), is to be granted only if petitioner files, within 28 days, an amended petition containing only fully exhausted claims, that is, absent claim 2 of the original petition; 3. Should petitioner not elect to file an exhausted-claims-only petition and to further pursue a stay, this matter will proceed on the original petition with the unexhausted claim 2 stricken from the petition. Dated: March 3, 2010

GARLAND E. BURRELL, JR. United States District Judge

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