Cornejo v. Pfeiffer, et al.

Filing 19

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/26/2018 RECOMMENDING 12 Motion to Strike Unexhausted Claims one and four be granted; claims one and four be dismissed as unexhausted; Respondent be directed to file a response to Petitioner's habeas petition addressing the properly exhausted claims (claims two, three, and five) within 60 days from the date of any order adopting these findings and recommendations; and Petitioner be directed to file a reply, if any, within 30 days after service of the answer. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSE CORNEJO,

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Petitioner,

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No. 2:18-cv-0572-MCE-EFB P

v.

FINDINGS AND RECOMMENDATIONS

CHRISTIAN PFEIFFER,

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Respondent.

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Petitioner is a California state prisoner who, proceeding through counsel, brings an

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application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to

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dismiss the petition as a “mixed petition,” or alternatively, to strike claims one and four from the

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petition as unexhausted. See ECF No. 12. Petitioner filed a response stating that he does not

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oppose respondent’s motion to strike unexhausted claims 1 and 4 of the petition and that he “is

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prepared to move forward with the exhausted claims in his petition for Writ of Habeas Corpus.”

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ECF No. 18. Given the parties’ agreement, it is recommend that respondent’s motion to strike be

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granted and that this habeas action proceed only on petitioner’s properly exhausted claims (claims

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two, three, and five).

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Respondent’s motion to strike unexhausted claims one and four (ECF No. 12) be

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granted;
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2. Claims one and four be dismissed as unexhausted;

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3. Respondent be directed to file a response to petitioner’s habeas petition addressing the

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remaining, properly exhausted claims (claims two, three, and five) within sixty days from the date

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of any order adopting these findings and recommendations. See Rule 4, Rules Governing § 2254

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Cases. An answer shall be accompanied by all transcripts and other documents relevant to the

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issues presented in the petition. See Rule 5, Fed. R. Governing § 2254 Cases; and

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

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. Failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991). In his objections petitioner may address whether a certificate of appealability should issue

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in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section

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2254 Cases (the district court must issue or deny a certificate of appealability when it enters a

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final order adverse to the applicant).

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DATED: November 26, 2018.

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