Winn v. McDonald

Filing 21

ORDER signed by Judge Kimberly J. Mueller on 3/20/2016 ORDERING that the 19 findings and recommendations are ADOPTED in full. Petitioner's 16 request for a stay is DENIED. Respondent's 10 motion to dismiss is GRANTED. Petitioner is directed to file an amended petition, including exhausted claims only, within 28 days of service of this order. Should petitioner fail to file an amended and fully exhausted petition, the claims identified in the 19 findings and recommendations as unexhausted will be stricken and those portions of the petition disregarded for all purposes. The case will then proceed on the basis of the petition as amended by operation of this order. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KASEEM J. WINN,

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No. 2:13-cv-2111 KJM AC P

Petitioner,

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v.

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FRED FOULK,

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ORDER

Respondent.

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Petitioner, a state prisoner proceeding with counsel, has filed this application for a writ of

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

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Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On February 18, 2015, the magistrate judge filed findings and recommendations, which

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

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findings and recommendations were to be filed within fourteen days. Petitioner has filed

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objections to the findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having reviewed the file, the court finds the

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findings and recommendations to be supported by the record and by the proper analysis. The

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court writes separately to emphasize that although the magistrate judge specifically noted the

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absence of evidence to support petitioner’s assertions of mental illness, see ECF No. 19 at 7,
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petitioner still has not presented evidence to support those assertions. Similarly, petitioner’s

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objections do not specifically address his mental status during the period between the time his

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conviction became final and the filing of this action despite the magistrate judge’s findings

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concerning the relevance of this time period and the absence of such information from the record.

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Cf. ECF No. 19 at 7.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed February 18, 2015 (ECF No. 19), are adopted

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in full;
2. Petitioner’s request for a stay (ECF No. 16) is denied;

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3. Respondent’s motion to dismiss (ECF No. 10) is granted; and

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4. Petitioner is directed to file an amended petition, including exhausted claims only,

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within 28 days of service of this order. Should petitioner fail to file an amended and fully

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exhausted petition, the claims identified in the findings and recommendations as unexhausted

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(ECF No. 19) will be stricken and those portions of the petition disregarded for all purposes. The

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case will then proceed on the basis of the petition as amended by operation of this order.

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DATED: March 20, 2015

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UNITED STATES DISTRICT JUDGE

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