Pereira v. Swarthout

Filing 15

ORDER signed by Judge Lawrence K. Karlton on 6/4/14 ADOPTING IN FULL 14 Findings and Recommendations; AFFIRMING 11 Order. Grounds 1 through 3 and 5 through 9 are deemed STRICKEN from the original petition; Petitioner's 12 request for a st ay and abeyance is GRANTED; the petition, containing only ground 4, is STAYED pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), and King v. Ryan, 564 F.3d 1133 (9th Cir. 2009); upon receiving the ruling of the California Supreme Court exh austing petitioner's as yet unexhausted grounds, petitioner is required, within 30 days thereafter; to inform this court of any such ruling and to request the stay be lifted; and to file an amended federal petition containing all of his exhausted claims. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONALD JOSEPH PEREIRA,

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No. 2:14-cv-0530 LKK AC P

Petitioner,
v.

ORDER

GARY SWARTHOUT, Warden,
Respondent.

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

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

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

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On April 14, 2014, plaintiff filed a request for reconsideration of that portion of the

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magistrate judge’s order filed April 4, 2014, denying petitioner’s motion for appointment of

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counsel without prejudice. Pursuant to E.D. Local Rule 303(f), a magistrate judge’s orders shall

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be upheld unless “clearly erroneous or contrary to law.” Id. Upon review of the entire file, the

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court finds that it does not appear that the magistrate judge’s ruling was clearly erroneous or

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contrary to law. Accordingly, the order will be affirmed.

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On April 29, 2014, the magistrate judge filed findings and recommendations herein which

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

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findings and recommendations were to be filed within twenty-one days. Petitioner has not filed
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objections to the findings and recommendations. The court has reviewed the file and finds the

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findings and recommendations to be supported by the record and by the magistrate judge’s

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analysis. Accordingly, they will be adopted in full.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The April 4, 2014 order of the magistrate judge denying petitioner’s motion for

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appointment of counsel is affirmed;

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2. The findings and recommendations filed April 29, 2014, are adopted in full;

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3. Grounds 1 through 3 and 5 through 9 are deemed stricken from the original petition;

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4. Petitioner’s request for a stay and abeyance (ECF No. 12) is granted;

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5. The petition, containing only ground 4, is stayed pursuant to Kelly v. Small, 315 F.3d
1063 (9th Cir. 2003), and King v. Ryan, 564 F.3d 1133 (9th Cir. 2009);
6. Upon receiving the ruling of the California Supreme Court exhausting petitioner’s asyet unexhausted grounds, petitioner is required, within thirty days thereafter;

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a. to inform this court of any such ruling and to request the stay be lifted; and

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b. to file an amended federal petition containing all of his exhausted claims.

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DATED: June 4, 2014.

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