(HC) Diaz-Sanchez v. Martel et al, No. 1:2014cv01204 - Document 69 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS that the Court Grant Petitioner's 68 Motion to Modify Stay and Abeyance signed by Magistrate Judge Sheila K. Oberto on 6/15/2018. Referred to Judge Dale A. Drozd. Objections to F&R due within Thirty (30) Days. (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GILBERTO DIAZ-SANCHEZ, No. 1:14-cv-01204-DAD-SKO HC 12 Petitioner, 13 v. 14 15 JEFFREY BEARD and NEIL McDOWELL, Respondents. 16 FINDINGS AND RECOMMENDATIONS THAT THE COURT GRANT PETITIONER’S MOTION TO MODIFY STAY AND ABEYANCE (Doc. 68) 17 18 Petitioner, Gilberto Diaz-Sanchez, is a state prisoner represented by counsel with a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 31, 2018, the 20 undersigned recommended granting Petitioner’s motion for stay and abeyance, (Doc. 64), which 21 the Court adopted on May 15, 2018. (Doc. 66.) On May 29, 2018, Petitioner filed a motion to 22 23 modify the stay to exhaust additional claims with the state court. 24 The undersigned, having previously found good cause for the stay, recommends granting 25 the motion to modify the stay to include additional unexhausted claims Petitioner may present to 26 the state court. 27 28 1 1 Conclusion and Recommendations 2 The Court hereby RECOMMENDS: 3 1. The prior order granting the motion for stay and abeyance, (Doc. 66), be modified 4 to include any unexhausted claims pursuant to the recent holding in McCoy v. Louisiana, 138 5 6 S.Ct. 1500 (2018). 2. 7 8 of this Order advising the Court of the status of the state court proceedings. 9 3. Petitioner shall file an additional status report every ninety (90) days thereafter. 4. 10 11 Petitioner is DIRECTED to file a status report within ninety (90) days of the date Within thirty (30) days after the California Supreme Court issues a final order resolving the unexhausted claims, Petitioner shall file a motion to lift the stay and an amended 12 13 14 habeas petition setting forth all exhausted claims. The Court shall then screen the petition pursuant to the Rules Governing Section 2254 Cases. These Findings and Recommendations will be submitted to the United States District 15 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty 17 (30) days after being served with these Findings and Recommendations, either party may file 18 written objections with the Court. The document should be captioned AObjections to Magistrate 19 Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and 20 21 filed within fourteen (14) days after service of the objections. The parties are advised that failure 22 to file objections within the specified time may constitute waiver of the right to appeal the District 23 Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. 24 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 25 IT IS SO ORDERED. 26 27 Dated: June 15, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 28 2 .