Ortiz v. People of the State of California

Filing 23

ORDER signed by Judge John A. Mendez on 9/11/12 ORDERING that the FINDINGS AND RECOMMENDATIONS filed 7/31/12 22 , are ADOPTED in full; and Respondent's MOTION to DISMISS claims one, three, four, five and seven as unexausted, filed 10/28/11 14 , is GRANTED and those claims are STRIKEN; Petitioner's MOTION to STAY and ABEYANCE pending state court exhaustion of unexhausted claims, filed on 1/3/12 18 , is DENIED; This matter proceeds only as to claims two, six and eight; and Respondent is directed to file an answer within 45 days, after which petitioner is GRANTED 45 days to file a reply/traverse.(Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH MANUEL ORTIZ,

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Petitioner,

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No. 2: 11-cv-1593 JAM GGH P

vs.

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ROBERT H. TRIMBLE, Acting Warden,

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Respondent.

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ORDER
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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On July 31, 2012, the magistrate judge filed findings and recommendations herein

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen days. Neither party has filed

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objections to the findings and recommendations.

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The court has reviewed the file and finds the findings and recommendations to be

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supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY

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ORDERED that:

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1. The findings and recommendations filed July 31, 2012, are adopted in full; and

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2. Respondent’s motion to dismiss claims one, three, four, five and seven as

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unexhausted, filed on October 28, 2011 (docket # 14), is granted and those claims are stricken;

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3. Petitioner’s motion for a stay and abeyance pending state court exhaustion of

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unexhausted claims, filed on January 3, 2012 (docket # 18), is denied;

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4. This matter proceeds only as to claims two, six and eight; and

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5. Respondent is directed to file an answer within 45 days, after which petitioner

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is granted 45 days to file a reply/traverse.

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DATED: September 11, 2012

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/s/ John A. Mendez

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UNITED STATES DISTRICT COURT JUDGE

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