(HC) Feci v. Burton

Filing 36

ORDER signed by Chief District Judge Kimberly J. Mueller on 3/31/2021 ADOPTING 26 Findings and Recommendations in full; GRANTING 10 Motion to Dismiss; DENYING 6 Motion to Stay for lack of good cause shown; STAYING these proceedings pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003); DIRECTING the clerk to administratively stay these proceedings until further order of the court; DIRECTING petitioner to file a status report with the court every 90 days indicating whether he has fil ed a habeas corpus petition in the California Supreme Court in order to exhaust his state court remedies; DIRECTING petitioner to file a motion to lift the stay within 30 days once the California Supreme Court issues a decision concerning his habeas corpus petition; and GRANTING petitioner leave to file a first amended 28 U.S.C. § 2254 application adding claims two and four back into the petition once the stay of this case has lifted. (Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES MICHAEL FECI,

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Petitioner,

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No. 2:20-cv-0878 KJM CKD P

v.

ORDER

ROBERT BURTON,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas

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corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as

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provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On October 30, 2020, the magistrate judge filed findings and recommendations, which

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

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findings and recommendations were to be filed within twenty-one days. ECF No. 26. Petitioner

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has filed objections to the findings and recommendations. ECF No. 29. Petitioner’s objections

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focus on why he believes his conviction may be unjust, but do not undermine the magistrate

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judge’s conclusions. In particular, petitioner is unable to explain how he has established good

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cause for a stay as required by Rhines v. Weber, 544 U.S. 269 (2005).

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having reviewed the file, the court finds the

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findings and recommendations to be supported by the record and by the proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed October 30, 2020, are adopted in full.

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2. Respondent’s motion to dismiss claims 2, 3 and 4 of the federal habeas corpus petition

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(ECF No. 10) is granted.
3. Petitioner’s motion to stay his mixed federal habeas petition (ECF No. 6) pursuant to
Rhines v. Weber, 544 U.S. 269 (2005), is denied for lack of good cause shown, given that

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although petitioner has alleged ineffective assistance of counsel but not provided any evidence to

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support that allegation.

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3. Petitioner is granted a stay of these proceedings pursuant to Kelly v. Small, 315 F.3d
1063 (9th Cir. 2003).
4. The Clerk of Court is directed to administratively stay these proceedings until further
order of the court.
5. Petitioner is directed to file a status report with the court every 90 days indicating

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whether he has filed a habeas corpus petition in the California Supreme Court in order to exhaust

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his state court remedies.

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6. Petitioner is further directed to file a motion to lift the stay within 30 days once the
California Supreme Court issues a decision concerning his habeas corpus petition.

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7. Once the stay of this case is lifted, petitioner will be granted leave to file a first

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amended 28 U.S.C. § 2254 application adding claims two and four back into the petition.

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DATED: March 31, 2021.

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