(HC) Stankewitz v. Adams, No. 1:2006cv01220 - Document 34 (E.D. Cal. 2010)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 33 ; ORDER GRANTING Respondent's Motion to Dismiss for Lack of Exhaustion 13 ; ORDER Permitting Petitioner Fifteen Days to Withdraw Unexhausted Ground Six and Proceed on Grounds One Through Five OR Have Petition Dismissed, signed by District Judge Lawrence J. O'Neill on 6/17/10: Deadline for Petitioner to comply with this order set for 7/5/10.(Hellings, J)

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(HC) Stankewitz v. Adams Doc. 34 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 WILLIAM ROBERT STANKEWITZ, 12 13 14 Petitioner, v. 15 DERRAL G. ADAMS, et al., 16 17 Respondents. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:06-cv-01220-LJO-JLT HC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 33) ORDER GRANTING RESPONDENT’S MOTION TO DISMISS FOR LACK OF EXHAUSTION (Doc. 13) ORDER PERMITTING PETITIONER FIFTEEN DAYS TO WITHDRAW UNEXHAUSTED GROUND SIX AND PROCEED ON GROUNDS ONE THROUGH FIVE OR HAVE PETITION DISMISSED 19 20 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 21 pursuant to 28 U.S.C. § 2254. 22 On February 14, 2008, Respondent filed a motion to dismiss the petition, contending that 23 the petition should be dismissed as a mixed petition because Ground Six in the instant petition 24 was not exhausted in state court. (Doc. 13). Subsequently, Petitioner requested, and was 25 granted, a stay of proceedings in order to exhaust Ground Six. (Docs. 12 & 19). On May 5, 26 2010, the Court issued an order lifting the stay of proceedings because of Petitioner’s failure to 27 keep the Court apprised of the status of his exhaustion efforts through regularly filed status 28 1 Dockets.Justia.com 1 reports. (Doc. 33). That order also contained Findings and Recommendations that Ground Six 2 was not exhausted, that the petition was therefore a mixed petition, and that Respondent’s motion 3 to dismiss should be granted. (Id.). The Findings and Recommendations indicated that 4 Petitioner would be given an opportunity to withdraw Ground Six and proceed on the remaining 5 claims before the Court dismissed the petition outright as a mixed petition. The Findings and 6 Recommendations was served on all parties and contained notice that any objections were to be 7 filed within twenty days from the date of service of that order. To date, the parties have not filed 8 any objections to the Findings and Recommendations. 9 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted 10 a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 11 the Magistrate Judge’s Findings and Recommendations is supported by the record and proper 12 analysis. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. 15 The Findings and Recommendations, filed May 7, 2010 (Doc. 33), is ADOPTED IN FULL; 16 2. 17 Respondent’s Motion to Dismiss for lack of exhaustion as to Ground Six (Doc. 13), is GRANTED; 18 4. Petitioner is granted fifteen (15) days from the date of service of this order in 19 which to file a motion to withdraw the unexhausted Ground Six and proceed on 20 the remaining claims, i.e., Grounds One through Five. If Petitioner fails to file 21 such a motion within the time provided by this order, the Court will enter an 22 order dismissing the petition as a mixed petition containing unexhausted claims 23 and enter judgment accordingly. 24 25 IT IS SO ORDERED. Dated: b9ed48 June 17, 2010 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 26 27 28 2

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