Sanudo v. Foulk

Filing 20

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 4/30/14 ORDERING that the 4/7/14 findings and recommendation 16 are VACATED; petitioner's 19 motion to exceed the word count for the first amended federal h abeas petition is GRANTED. It is RECOMMENDED that petitioner's 3 motion to stay his federal habeas petition be denied as moot; respondent's 13 motion to dismiss the original mixed petition without prejudice also be denied as moot; petitioner's 18 motion to lift the stay be denied as unnecessary since no stay was ever entered by the district court; and respondent be directed to file an answer to 17 the first amended federal habeas corpus petition within 60 days of the adoption of the instant findings and recommendation by the district court judge. Motions referred to Judge Garland E. Burrell, Jr.. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL SANUDO,

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No. 2:14-cv-0068 GEB AC P

Petitioner,

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v.

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FRED FOULK,

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ORDER AND FINDINGS AND
RECOMMENDATION
Respondents.

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Petitioner, a state prisoner proceeding through counsel, has filed an application for a writ

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of 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 April 7, 2014, the undersigned issued findings and recommendations regarding

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petitioner’s motion to stay and abey his federal habeas corpus petition pending exhaustion of state

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court remedies. ECF No. 3. During the objection period, petitioner filed a motion to lift the stay

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based on the California Supreme Court’s order entered on April 9, 2014. ECF No. 18.

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Concurrent to the filing of the motion, petitioner also filed a first amended habeas petition, ECF

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No. 17, and a motion to exceed the word count for the amended petition, ECF No. 19.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The April 7, 2014 findings and recommendation are vacated; and,

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2. Petitioner’s motion to exceed the word count for the first amended federal habeas
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petition (ECF No. 19) is granted.

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IT IS FURTHER RECOMMENDED that:

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1. Petitioner’s motion to stay his federal habeas petition (ECF No. 3) be denied as moot;

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2. Respondent’s motion to dismiss the original mixed petition without prejudice (ECF

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No. 13) also be denied as moot;
3. Petitioner’s motion to lift the stay (ECF No. 18) be denied as unnecessary since no stay
was ever entered by the district court; and,
4. Respondent be directed to file an answer to the first amended federal habeas corpus
petition (ECF No. 17) within 60 days of the adoption of the instant findings and recommendation
by the district court judge.

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These findings and recommendations are submitted to the United States District Judge

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

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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: April 30, 2014

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