Davis v. Ducrat

Filing 33

ORDER signed by District Judge John A. Mendez on 3/29/2017 ADOPTING IN FULL 28 Findings and Recommendations; GRANTING 15 Motion to Dismiss without prejudice and with leave to amend; GRANTING the petitioner leave to (a) file an amended petition co ntaining only the three claims that he has exhausted or (b) file a motion to stay pursuant to Rhines, 544 U.S. at 277; CAUTIONING the petitioner that in the absence of an amended petition or a motion to stay, the Court will deem the 29 First Amended Petition for Writ of Habeas Corpus as the operative petition in this case. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID M. DAVIS,

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No. 2:16-cv-0733-JAM-EFB P

Petitioner,
v.

ORDER

M. ELIOT SPEARMAN,

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Respondent.

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Petitioner, a state prisoner proceeding without 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 February 16, 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 fourteen days. Neither party has filed

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objections to the findings and recommendations. On March 6, 2017, petitioner filed his first

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amended petition.

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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 February 16, 2017, are adopted in full.
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2. Respondent’s June 10, 2016 motion to dismiss (ECF No. 15) is granted on

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exhaustion grounds and the petition is dismissed without prejudice and with leave

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to amend.

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3. Petitioner is granted leave to either (a) file an amended petition containing only the

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three claims that he has exhausted or (b) file a motion to stay pursuant to Rhines, 544 U.S.

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at 277. If petitioner does not file an amended petition or a motion to stay, the court will deem the

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March 6, 2017 amended petition as the operative petition in this case.

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DATED: March 29, 2017

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/s/ John A. Mendez_______________________

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UNITED STATES DISTRICT COURT JUDGE

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