Robert Deane Schwartz v. Domingo Uribe Jr et al, No. 5:2011cv01174 - Document 70 (C.D. Cal. 2013)
Court Description: ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Michael W. Fitzgerald for Findings and Recommendations of United States Magistrate Judge 66 ; and Denying Petitioner's Request for Appointment of Counsel for Purpose of an Evidentiary Hearin g: (See document for details.) THEREFORE IS ORDERED that Judgment be entered denying the Second Amended Petition and dismissing this action without prejudice for failure to exhaust state remedies unless, within thirty (30) days, petitioner files a n otice of withdrawal of the following unexhausted claims (numbered in accordance with the breakdown set forth in the Magistrate Judge's May 30,2012 Order re Further Proceedings): 2(b), 2(c), 2(e), 2(g), 3(d), 4(b), 5(a), 5(c), 6(a), 7(c), and 7(f). (rla)
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Robert Deane Schwartz v. Domingo Uribe Jr et al Doc. 70 £' 1 2 FILED CLERK, U.S.D.C. SOUTHERN DIVISION 3 4 5 I HEREBY CERTIFY THAT THIS DOCUMENT WAS SERVED BY FIRST CLASS MAIL POSTAGE PREPAID, (OR PARTIES} AT THEIR RESPECTIVE MOST RECENT ADDRESS OF RECORD IN THIS ACTION ON THIS DATE. 6 DAT[O 7 8 9 i!Jii MAR I 9 2013 F ALIFORNIA "\-\3 DEPUTY UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERT DEANE SCHWARTZ, 12 13 14 15 16 Petitioner, vs. DOMINGO URIBE, JR., Warden, Respondent. Case No. EDCV 11-1174-MWF (RNB) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE· AND DENYING PETITIONER'S REQDEST FOR APPOINTMENT OF COUNSEL FOR PURPOSE OF AN EVIDENTIARY HEARING 17 On January 29, 2013, the assigned Magistrate Judge issued a Report and 18 Recommendation in this matter with respect to the exhaustion of state remedies issue 19 raised by respondent in his Answer and Supplemental Answer to the operative 20 Second Amended Petition herein. The Magistrate Judge found that the Second 21 Amended Petition herein constituted a "mixed petition" in that the following claims 22 (numbered in accordance with the breakdown set forth in the Magistrate Judge's May 23 30, 20 12 Order re Further Proceedings) had not been fairly presented to the California 24 Supreme Court: 2(b), 2(c), 2(e), 2(g), 3(d), 4(b), 5(a), 5(c), 6(a), 7(c), and 7(f). 25 Accordingly, the Magistrate Judge recommended that this action be dismissed 26 without prejudice for failure to exhaust state remedies unless petitioner filed a notice 27 of withdrawal of his unexhausted claims within thirty (30) days. 28 On February 15, 2013, petitioner filed a "Statement of Objections" to the 1 Dockets.Justia.com ... 1 Report and Recommendation. He then filed a "Notice of Clerical Error in His 2 Statement of Objections" on March 4, 2013. Petitioner's objections included a 3 request for the appointment of counsel for purposes of an evidentiary hearing on the 4 on the exhaustion of state remedies issue. 5 Pursuant to 28 U.S.C. § 636, the Court has reviewed the operative Second 6 Amended Petition and all the records and files herein, including the Report and 7 Recommendation of the Magistrate Judge, and petitioner's objections thereto. 8 Having made a de novo determination of those portions of the Report and 9 Recommendation to which objections have been made, the Court accepts the findings 10 and recommendations of the Magistrate Judge. Further, the Court denies petitioner's 11 request for the appointment of counsel for purposes of an evidentiary hearing on the 12 exhaustion of state remedies issue as unnecessary. 1 13 IT THEREFORE IS ORDERED that Judgment be entered denying the Second 14 Amended Petition and dismissing this action without prejudice for failure to exhaust 15 state remedies unless, within thirty (30) days, petitioner files a notice of withdrawal 16 of the following unexhausted claims (numbered in accordance with the breakdown 17 set forth in the Magistrate Judge's May 30,2012 OrderreFurther Proceedings): 2(b), 18 2(c), 2(e), 2(g), 3(d), 4(b), 5(a), 5(c), 6(a), 7(c), and 7(f). 19 20 DATED: (p/J 21 22 23 24 25 26 27 28 To the extent that petitioner also was requesting the appointment of counsel to represent him with respect to the merits of his exhausted claims (assuming those claims go forward), including for purposes of further development ofthe record and/or discovery (if either becomes necessary here), the Court refers petitioner's request back to the Magistrate Judge for consideration. 2
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