(HC) Franco v. Espinoza, No. 1:2018cv00057 - Document 16 (E.D. Cal. 2018)

Court Description: ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS for Dismissal of the Petition for Failure to Prosecute 15 , signed by Magistrate Judge Sheila K. Oberto on 11/14/2018. (Hellings, J)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARIA ANTONIA FRANCO, 12 13 14 No. 1:18-cv-00057-DAD-SKO (HC) Petitioner, v. JANEL ESPINOZA, Warden, 15 ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS FOR DISMISSAL OF THE PETITION FOR FAILURE TO PROSECUTE Respondent. 16 (Doc. 15) 17 18 19 20 Petitioner, Maria Antonia Franco, is a state prisoner proceeding with counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court referred the matter to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 21 22 23 On January 25, 2018, the undersigned stayed proceedings in the case pursuant to Rhines v. Weber, 544 U.S. 269, 275 (1995), to permit Petitioner to exhaust certain claims in state court. (Doc. 24 16.) The order directed Petitioner to file, within 30 days of the California Supreme Court's issuing 25 a final order resolving her claims, a motion to lift the stay and an amended petition setting forth all 26 exhausted claims. 27 28 1 1 On October 9, 2018, Petitioner notified the Court that on September 19, 2018, the California 2 Supreme Court denied review of her petition. Although more than thirty days passed after the 3 California Supreme Court issued a final order, Petitioner did not file a motion to lift the stay and 4 an amended petition. 5 On October 23, 2018, the undersigned ordered Petitioner to show cause within fifteen days 6 7 why her petition should not be dismissed for failure to obey the Court’s order filed January 25, 8 2018. More than fifteen days passed and Petitioner failed to respond to the undersigned’s order to 9 show cause. On November 13, 2018, the undersigned filed findings and recommendations in which 10 she recommended the Court dismiss Petitioner’s petition for failure to prosecute. 11 On November 12, 2018, Petitioner, through counsel, filed an amended petition for writ of 12 13 14 habeas corpus. Although the petition is late, the undersigned will accept it as a response to the Order to Show Cause. The Court will screen the petition in due course. Accordingly, the undersigned hereby WITHDRAWS the findings and recommendations 15 16 filed November 13, 2018. 17 18 IT IS SO ORDERED. 19 20 Dated: November 14, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2 .