Avalos v. Lewis

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 8/1/2012, RECOMMENDING that petitioner's 19 motion for stay and abeyance be granted; this action be stayed pending exhaustion of state court remedies as to petitioner� 39;s unexhausted claims; petitioner be directed to present his claims to the state court within thirty days of any order by the district court adopting these findings and recommendations; petitioner be directed to file a motion to lift the stay withi n thirty days of any final decision by the California Supreme Court on the unexhausted claims; respondent's 10 motion to dismiss be denied without prejudice; and the Clerk be directed to administratively close this action. Referred to Judge Lawrence K. Karlton; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARCOS AVALOS,
Petitioner,

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vs.
GREGG LEWIS, Warden,
Respondent.

FINDINGS & RECOMMENDATIONS
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No. 2:12-cv-0052 LKK JFM (HC)

Petitioner is a state prisoner proceeding pro se and in forma pauperis with an

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application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 19, 2012,

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respondent filed a motion to dismiss. Respondent contends that the petition before the court is a

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mixed petition containing both exhausted and unexhausted claims. On June 4, 2012, petitioner

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filed a document styled as an opposition to the motion to dismiss. Therein, petitioner requests

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that this action be stayed and held in abeyance pending exhaustion of unexhausted claims or, in

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the alternative, that petitioner be granted leave to amend the petition to proceed with the

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exhausted claims.

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By order filed June 28, 2012, respondent was directed to file and serve within

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fourteen days a response to petitioner’s request for stay and abeyance. On July 10, 2012,

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respondent filed a statement of non-opposition to the request. Therein, respondent requests that
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petitioner be directed to present his claims to the state court within thirty days of issuance of the

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stay and to file a motion to lift the stay within thirty days of any final decision by the California

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Supreme Court on the unexhausted claims.

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Good cause appearing, IT IS HEREBY RECOMMENDED that:

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1. Petitioner’s June 4, 2012 motion for stay and abeyance be granted;

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2. This action be stayed pending exhaustion of state court remedies as to

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petitioner’s unexhausted claims;
3. Petitioner be directed to present his claims to the state court within thirty days

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of any order by the district court adopting these findings and recommendations;
4. Petitioner be directed to file a motion to lift the stay within thirty days of any

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final decision by the California Supreme Court on the unexhausted claims;
5. Respondent’s March 19, 2012 motion to dismiss be denied without prejudice;

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and

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6. The Clerk of the Court be directed to administratively close this action.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 1, 2012.

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aval0052.stay

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