(HC) Barrera v. Muniz, No. 2:2014cv02260 - Document 23 (E.D. Cal. 2015)

Court Description: ORDER signed by Judge John A. Mendez on 11/3/2015 ADOPTING 19 Findings and Recommendations; GRANTING 11 Motion to Dismiss; DENYING 18 Motion for Stay and Abeyance; DIRECTING the petitioner to file within thirty days, an amended petition proceeding fully on his exhausted Claims (1) and (2) or an amended petition accompanied by a motion for a stay pursuant to the Kelly procedure. (Michel, G.)

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(HC) Barrera v. Muniz Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ENRIQUE BARRERA, 12 13 14 No. 2:14-cv-2260 JAM DAD P Petitioner, v. ORDER W.L. MUNIZ, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 23, 2015, the magistrate judge filed findings and recommendations herein which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within fourteen days. On August 17, 2015, the 23 magistrate judge granted petitioner a thirty-day extension of time to file any objections. That 24 time period has now expired. To date, neither party has filed objections to the findings and 25 recommendations. 26 The court has reviewed the file and finds the findings and recommendations to be 27 supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY 28 ORDERED that: 1 Dockets.Justia.com 1 1. The findings and recommendations filed July 23, 2015, are adopted; and 2 2. Respondent’s motion to dismiss (Doc. No. 11) is granted; 3 3. Petitioner’s renewed motion for a stay and abeyance under the procedure outlined in 4 5 the Supreme Court’s decision in Rhines (Doc. No. 18) is denied; and 4. Within thirty days of the date of this order, petitioner is directed to file an amended petition 6 containing only his exhausted Claims (1) and (2). Petitioner may elect to proceed on his fully 7 exhausted Claims (1) and (2) or he may file with his amended petition a motion for a stay pursuant to 8 the Kelly procedure. 9 DATED: November 3, 2015 10 /s/ John A. Mendez________________________ 11 UNITED STATES DISTRICT COURT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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