(HC) Duran v. Frauenheim, No. 2:2017cv02122 - Document 15 (E.D. Cal. 2018)

Court Description: ORDER signed by District Judge Kimberly J. Mueller on 6/14/2018 ADOPTING 14 findings and recommendations, except for the advisement at page 2:4-7. Petitioner's 8 Motion to Stay is DENIED. (Zignago, K.)
Download PDF
(HC) Duran v. Frauenheim Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE ANTONIO DURAN, 12 Petitioner, 13 14 No. 2:17-cv-2122 KJM AC P v. ORDER SCOTT FRAUENHEIM, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 17 18 corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as 19 provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On March 1, 2018, the magistrate judge filed findings and recommendations, which were 20 21 served on petitioner and which contained notice to petitioner that any objections to the findings 22 and recommendations were to be filed within fourteen days. ECF No. 14. Petitioner has not filed 23 objections to the findings and recommendations. 24 The court presumes that any findings of fact are correct. See Orand v. United States, 602 25 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 26 See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having reviewed 27 the file, the court finds the recommendation to deny petitioner’s motion for a stay under Kelly v. 28 ///// 1 Dockets.Justia.com 1 Small, 315 F.3d 1063 (9th Cir. 2003) is supported by the record and proper analysis. It will 2 therefore be adopted. The court declines to adopt the advisement at page 2:4-7. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The findings and recommendations filed March 1, 2018 (ECF No. 14), are adopted 5 6 7 except for the advisement at page 2:4-7; and 2. Petitioner’s motion for stay (ECF No. 8) is denied. DATED: June 14, 2018. 8 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2