Arismendez v. Muniz

Filing 30

ORDER ADOPTING 29 Findings and Recommendations in full signed by Senior Judge Morrison C. England, Jr. on 03/24/20 DENYING 03/07/19 22 Motion to Stay as moot since there was no pending federal habeas corpus petition to stay at that juncture; GRANTING IN PART AND DENYING IN PART 27 Motion to Stay First Amended Petition; Clerk to administratively STAY the 26 first amended habeas petition until further order of the court. Petitioner to file a status report every 90 days indicating what efforts he has taken to exhaust his state court remedies and to file a motion to lift the stay within 30 days of any decision by the California Supreme Court. (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROLANDO ARISMENDEZ,
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Petitioner,

No. 2:17-cv-00792-MCE-CKD P

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v.
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DAVID BAUGHMAN,

ORDER

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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
corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On January 13, 2010, the magistrate judge filed findings and recommendations herein
which were served on all parties and which contained notice to all parties that any objections to
the findings and recommendations were to be filed within fourteen days. Neither party has filed
objections to the findings and recommendations.
The Court presumes that any findings of fact are correct. See Orand v. United States, 602
F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo.
See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having
reviewed the file, the Court finds the findings and recommendations to be supported by the record

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and by the magistrate judge’s analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed January 13, 2010, are ADOPTED in full;

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2. Petitioner’s motion for a stay filed on March 7, 2019 (ECF No. 22) is DENIED as

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moot since there was no pending federal habeas corpus petition to stay at that juncture.

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3. Petitioner’s motion to stay his first amended federal habeas petition (ECF No. 27) is

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GRANTED in part and DENIED in part. To the extent that the motion seeks a stay pursuant to

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Rhines v. Weber, 544 U.S. 269 (2005), the motion is DENIED. Petitioner’s motion to stay and

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abey this action pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), is GRANTED.

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4. The Clerk of Court is directed to administratively stay the first amended federal habeas
petition (ECF No. 26) until further order of the court.
5. Petitioner is directed to file a status report with the court every 90 days indicating what
efforts he has taken to exhaust his state court remedies.
6. Petitioner is further directed to file a motion to lift the stay within 30 days of any
decision by the California Supreme Court.
IT IS SO ORDERED.

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DATED: March 24, 2020

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_______________________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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