Barrera v. Muniz
Filing
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ORDER signed by Judge John A. Mendez on 11/3/2015 ADOPTING 19 Findings and Recommendations; GRANTING 11 Motion to Dismiss; DENYING 18 Motion for Stay and Abeyance; DIRECTING the petitioner to file within thirty days, an amended petition proceeding fully on his exhausted Claims (1) and (2) or an amended petition accompanied by a motion for a stay pursuant to the Kelly procedure. (Michel, G.)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ENRIQUE BARRERA,
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No. 2:14-cv-2260 JAM DAD P
Petitioner,
v.
ORDER
W.L. MUNIZ,
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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 July 23, 2015, the magistrate judge filed findings and recommendations herein 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. On August 17, 2015, the
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magistrate judge granted petitioner a thirty-day extension of time to file any objections. That
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time period has now expired. To date, neither party has filed objections to the findings and
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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 23, 2015, are adopted; and
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2. Respondent’s motion to dismiss (Doc. No. 11) is granted;
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3. Petitioner’s renewed motion for a stay and abeyance under the procedure outlined in
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the Supreme Court’s decision in Rhines (Doc. No. 18) is denied; and
4. Within thirty days of the date of this order, petitioner is directed to file an amended petition
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containing only his exhausted Claims (1) and (2). Petitioner may elect to proceed on his fully
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exhausted Claims (1) and (2) or he may file with his amended petition a motion for a stay pursuant to
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the Kelly procedure.
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DATED: November 3, 2015
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/s/ John A. Mendez________________________
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UNITED STATES DISTRICT COURT JUDGE
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