(DP) Cornwell v. Ylst, No. 2:2006cv00705 - Document 85 (E.D. Cal. 2011)

Court Description: ORDER adopting 84 in full FINDINGS AND RECOMMENDATIONS signed by Judge John A. Mendez on 12/15/11. Petitioner's amended federal petition filed on 2/8/11, is timely under 28 U.S.C. § 2254(d). Petitioner's claims 2(g)-(n) and 21(E) are not unexhausted. Petitioner's claim 21(C) is exhausted. The court will defer a ruling on the procedural default aspects of respondent's motion to dismiss until resolution of the 28 U.S.C. § 2254(d) issues. (Kastilahn, A)
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(DP) Cornwell v. Ylst Doc. 85 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 GLENN CORNWELL, JR., 11 12 13 Petitioner, No. 2:06-cv-00705 JAM KJN vs. DEATH PENALTY CASE WARDEN, San Quentin State Prison, 14 Respondent. ORDER 15 / 16 17 Petitioner, a state prisoner proceeding with counsel, has filed an application for a 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On October 25, 2011, the magistrate judge filed findings and recommendations 21 herein which were served on all parties and which contained notice to all parties that any 22 objections to the findings and recommendations were to be filed within fourteen days. Neither 23 party has filed objections to the findings and recommendations. 24 The court has reviewed the file and finds the findings and recommendations to be 25 supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY 26 ORDERED that: 1 Dockets.Justia.com 1 1. The findings and recommendations filed October 25, 2011, are adopted in full; 2 2. Petitioner’s amended federal petition, filed here on February 8, 2011, is timely 3 under 28 U.S.C. § 2254(d); 4 3. Petitioner’s claims 2(g)-(n) and 21(E) are not unexhausted; 5 4. Petitioner’s claim 21(C) is exhausted; 6 5. To the extent petitioner makes new factual allegations regarding the California 7 Supreme Court’s consideration of capital cases in subsection (J) of claim 21, which are not 8 contained in the exhausted portions of claim 21, those new factual allegations constitute an 9 unexhausted claim; 10 6. To the extent allegations in subsection (J) of claim 21 summarize factual 11 allegations contained in the exhausted portions of claim 21, those allegations are exhausted; and 12 7. The court will defer a ruling on the procedural default aspects of 13 respondent’s May 11 motion to dismiss until resolution of the 28 U.S.C. § 2254(d) issues, as 14 stipulated by the parties in the October 13, 2011 Joint Statement. (Dkt. No. 82.) 15 DATED: December 15, 2011 16 /s/ John A. Mendez 17 U. S. DISTRICT COURT JUDGE 18 19 20 21 22 23 24 25 26 2