King v. Davey

Filing 52

ORDER adopting in full 50 FINDINGS AND RECOMMENDATIONS, signed by Senior Judge William B. Shubb on 8/29/17. The motion to stay 40 is DENIED, and the amended petition is dismissed with leave to amend to allow petitioner the opportunity to file a fully exhausted petition and then seek a stay under Kelly v. Small. Respondent is directed to file and serve a response to the second amended petition within 60 days. Petitioner's reply, if any, shall be filed and served within 30 days of service of an answer. (Kastilahn, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY LEE KING, 12 No. 2:16-cv-1464-WBS-EFB P Petitioner, 13 v. 14 DAVE DAVEY, 15 ORDER Respondent. 16 Petitioner, a state prisoner proceeding without counsel, has filed an application for a writ 17 18 of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On July 12, 2017, the magistrate judge filed findings and recommendations herein which 20 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within fourteen days. Neither party has filed 23 objections to the findings and recommendations. The court has reviewed the file and finds the findings and recommendations to be 24 25 supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY 26 ORDERED that: 1. The findings and recommendations filed July 12, 2017, are adopted in full; 27 28 //// 1 1 2. The April 14, 2017 motion to stay (ECF No. 40) is DENIED, and the amended 2 petition is dismissed with leave to amend to allow petitioner the opportunity to file a 3 fully exhausted petition and then seek a stay under Kelly v. Small, 315 F.3d 1063 (9th 4 Cir. 2002). 5 3. Petitioner has filed a second amended petition during the period between the 6 magistrate judge’s findings and recommendations and this order adopting those 7 findings and recommendations. ECF No. 51. Accordingly, respondent is directed to 8 file and serve a response to the second amended petition within 60 days. Petitioner’s 9 reply, if any, shall be filed and served within 30 days of service of an answer. 10 Dated: August 29, 2017 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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