(HC) Feci v. Burton
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JAMES MICHAEL FECI,
No. 2:20-cv-0878 KJM CKD P
Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas
corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as
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
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 twenty-one days. ECF No. 26. Petitioner
has filed objections to the findings and recommendations. ECF No. 29. Petitioner’s objections
focus on why he believes his conviction may be unjust, but do not undermine the magistrate
judge’s conclusions. In particular, petitioner is unable to explain how he has established good
cause for a stay as required by Rhines v. Weber, 544 U.S. 269 (2005).
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this
court has conducted a de novo review of this case. Having reviewed the file, the court finds the
findings and recommendations to be supported by the record and by the proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed October 30, 2020, are adopted in full.
2. Respondent’s motion to dismiss claims 2, 3 and 4 of the federal habeas corpus petition
(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
although petitioner has alleged ineffective assistance of counsel but not provided any evidence to
support that allegation.
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
whether he has filed a habeas corpus petition in the California Supreme Court in order to exhaust
his state court remedies.
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.
7. Once the stay of this case is lifted, petitioner will be granted leave to file a first
amended 28 U.S.C. § 2254 application adding claims two and four back into the petition.
DATED: March 31, 2021.
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