Miller v. Frauenheim

Filing 33

ORDER signed by District Judge John A. Mendez on 5/20/16 ADOPTING IN FULL 24 Findings and Recommendations; GRANTING 22 Petitioner's Motion to Stay as follows: The amended petition (ECF No. 18) is DISMISSED as "mixed." No later t han 30 days after dismissal, petitioner shall file a second amended petition containing only exhausted claims (Claims 2 and 3). Failure to timely file such an amended petition will result in this action being closed. Upon receipt of a fully ex hausted second amended petition, that court will administratively stay this action pursuant to Kelly, pending exhaustion of Claim 1 in the California Supreme Court; GRANTING as consistent with the above 21 Respondent's Motion to Dismiss; D ENYING as inconsistent with this order 25 Petitioner's Motion to amend traverse. The action is referred back to the Magistrate Judge for further proceedings, including review of the proposed Second Amended Petition (ECF No. 28). (Jackson, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRAD ROBERT MILLER,

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Petitioner,

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No. 2:15-cv-1365 JAM CKD P

v.

ORDER

SCOTT FRAUENHEIM,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, commenced this action pursuant to 28

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

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U.S.C. § 636(b)(1)(B) and Local Rule 302.
On March 18, 2016, the magistrate judge filed findings and recommendations herein

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

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and recommendations were to be filed within fourteen days. Neither party has filed objections to

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the findings and recommendations.
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 carefully reviewed the entire file, the

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court finds the findings and recommendations to be supported by the record and by proper

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analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed March 18, 2016 are adopted in full;

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2. Petitioner’s motion for stay (ECF No. 22) is granted as follows:

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a. The amended petition (ECF No. 18) is dismissed as “mixed”;

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b. No later than thirty days after dismissal, petitioner shall file a second amended

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petition containing only exhausted claims (Claims 2 and 3);

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c. Failure to timely file such an amended petition will result in this action being
closed; and

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d. Upon receipt of a fully exhausted second amended petition, that court will

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administratively stay this action pursuant to Kelly, pending exhaustion of Claim 1 in the

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California Supreme Court.

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3. Respondent’s motion to dismiss (ECF No. 21) is granted as consistent with the above;

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4. Petitioner’s motion to amend traverse (ECF No. 25) is denied as inconsistent with this

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order; and
5. This action is referred back to the Magistrate Judge for further proceedings, including

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review of the proposed Second Amended Petition (ECF No. 28).

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DATED: May 20, 2016

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/s/ John A. Mendez

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United States District Court Judge

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