(HC) Sum v. Clark, No. 2:2009cv02811 - Document 40 (E.D. Cal. 2011)

Court Description: ORDER signed by Judge William B. Shubb on 9/27/11 ORDERING that the findings and recommendations is adopted in full; and Petitioner's motion to stay and abey 32 is DENIED and to the extent that Claim II includes a federal double jeopardy claim it is deemed unexhausted and is stricken. (Becknal, R)

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(HC) Sum v. Clark Doc. 40 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BRIAN SUM, Petitioner, 11 12 13 14 15 16 2: 09 - cv - 2811 - WBS TJB vs. KEN CLARK, Warden Respondent. ORDER ________________________________/ Petitioner is a state prisoner and has filed an application for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge 18 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On August 24, 2011, Magistrate Judge Bommer issued findings and recommendations 20 recommended that Petitioner’s motion for stay and abeyance be denied and that to the extent 21 Claim II included a federal Double Jeopardy argument that it be dismissed as unexhausted. 22 Petitioner filed objections to the findings and recommendations on September 14, 2011. 23 Respondent filed a reply to the objections on September 21, 2011. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having carefully reviewed the entire file 26 including the objections, the court finds the August 24, 2011 findings and recommendations to 1 Dockets.Justia.com 1 be supported by the record and by proper analysis. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The findings and recommendations filed August 24, 2011 is adopted in full; and 4 2. Petitioner’s motion to stay and abey (Dkt. No. 32) is DENIED and to the extent 5 that Claim II includes a federal double jeopardy claim it is deemed unexhausted 6 and is stricken. 7 DATED: September 27, 2011 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2

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