(HC) Ross v. Sisto et al, No. 2:2009cv02444 - Document 21 (E.D. Cal. 2010)

Court Description: ORDER adopting in full 18 findings and recommendations, signed by Senior Judge Lawrence K. Karlton on 8/30/10. Respondent's motion to dismiss 12 is DENIED. The proceedings are STAYED pending exhaustion of state remedies. Petitioner is dire cted to file a status report of his progress in the state courts within 30 days, and then every 30 days thereafter until exhaustion is complete. Within 30 days after the final order of the CA Supreme Court, petitioner must file an amended petition in this court including his fully exhausted claims. (Kastilahn, A)
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(HC) Ross v. Sisto et al Doc. 21 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 TIMOTHY ELLIS ROSS, 11 12 13 14 Petitioner, No. CIV S-09-2444 LKK GGH P Respondent. ORDER vs. D.K. SISTO, 15 16 / Petitioner, a state prisoner proceeding pro se, has filed this application for a writ 17 of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 18 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On July 23, 2010, the magistrate judge filed findings and recommendations herein 20 which were served on all parties and which contained notice to all parties that any objections to 21 the findings and recommendations were to be filed within fourteen days. Respondent has filed 22 objections to the findings and recommendations and petitioner has filed a reply. 23 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 24 304, this court has conducted a de novo review of this case. Having carefully reviewed the 25 entire file, the court finds the findings and recommendations to be supported by the record and by 26 proper analysis. 1 Dockets.Justia.com 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed July 23, 2010, are adopted in full; 3 2. Respondent’s motion to dismiss (doc. 12) is denied; 4 3. Petitioner is granted a stay pursuant to Rhines v. Weber, 544 U.S. 269, 125 5 S.Ct. 1528 (2005); 6 4. The proceedings are stayed pending exhaustion of state remedies; 7 5. Petitioner is directed to file a status report of his progress in the state courts 8 within thirty (30) days, and then every thirty (30) days thereafter until exhaustion is complete; 9 6. Within thirty (30) days after the final order of the California Supreme Court, 10 petitioner must file an amended petition in this court including his fully exhausted claims; and 11 7. Petitioner’s failure to comply with these directives will result in the district 12 court’s vacating the stay. 13 DATED: August 30, 2010. 14 15 16 17 18 19 20 21 22 23 24 25 26 2