Cruz v. State of California

Filing 20

ORDER signed by District Judge Troy L. Nunley on 3/20/2017 ADOPTING IN FULL 19 Findings and Recommendations; DENYING 16 Motion to Stay; GRANTING IN PART 11 Motion to Dismiss; DISMISSING Grounds One, Two, Three, and Five of the 1 Petition for Writ of Habeas Corpus as unexhausted; DIRECTING the respondent to file a response to the 1 Petition for Writ of Habeas Corpus, addressing Ground Four, within sixty days; DIRECTING the petitioner to file a reply, if any, within thirty days after service of the respondent's Answer; DECLINING to issue the certificate of appealability referenced in 28 U.S.C. § 2253. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS CRUZ,

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Petitioner,

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No. 2:16-cv-0498-TLN-AC P

v.

ORDER

WILLIAM 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 February 23, 2017, the magistrate judge filed findings and recommendations herein,

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

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the findings and recommendations were to be filed within ten days. ECF No. 19. Neither party

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has filed objections to the findings and recommendations.
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:
1. The findings and recommendations filed February 23, 2017 (ECF No. 19), are adopted

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

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3. Respondent’s motion to dismiss (ECF No. 11) is granted in part.

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4. The following claims and any included sub-claims are dismissed as unexhausted:

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Grounds One, Two, Three, and Five.

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5. Respondent is directed to file a response to Petitioner’s habeas petition addressing the

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remaining, properly exhausted claim (Ground 4) within sixty days from the date this Order. See

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Rule 4, Fed. R. Governing § 2254 Cases. An answer shall be accompanied by all transcripts and

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other documents relevant to the issues presented in the petition. See Rule 5, Fed. R. Governing §

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2254 Cases.

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6. Petitioner is directed to file a reply, if any, within thirty days after service of the answer.

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7. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. §

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2253.

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Dated: March 20, 2017

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Troy L. Nunley
United States District Judge

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