(HC) Cornejo v. Pfeiffer, et al., No. 2:2018cv00572 - Document 19 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/26/2018 RECOMMENDING 12 Motion to Strike Unexhausted Claims one and four be granted; claims one and four be dismissed as unexhausted; Respondent be directed to file a response to Petitioner's habeas petition addressing the properly exhausted claims (claims two, three, and five) within 60 days from the date of any order adopting these findings and recommendations; and Petitioner be directed to file a reply, if any, within 30 days after service of the answer. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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(HC) Cornejo v. Pfeiffer, et al. Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JESSE CORNEJO, 12 Petitioner, 13 14 No. 2:18-cv-0572-MCE-EFB P v. FINDINGS AND RECOMMENDATIONS CHRISTIAN PFEIFFER, 15 Respondent. 16 17 Petitioner is a California state prisoner who, proceeding through counsel, brings an 18 application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to 19 dismiss the petition as a “mixed petition,” or alternatively, to strike claims one and four from the 20 petition as unexhausted. See ECF No. 12. Petitioner filed a response stating that he does not 21 oppose respondent’s motion to strike unexhausted claims 1 and 4 of the petition and that he “is 22 prepared to move forward with the exhausted claims in his petition for Writ of Habeas Corpus.” 23 ECF No. 18. Given the parties’ agreement, it is recommend that respondent’s motion to strike be 24 granted and that this habeas action proceed only on petitioner’s properly exhausted claims (claims 25 two, three, and five). 26 Accordingly, IT IS HEREBY RECOMMENDED that: 27 1. Respondent’s motion to strike unexhausted claims one and four (ECF No. 12) be 28 granted; 1 Dockets.Justia.com 1 2. Claims one and four be dismissed as unexhausted; 2 3. Respondent be directed to file a response to petitioner’s habeas petition addressing the 3 remaining, properly exhausted claims (claims two, three, and five) within sixty days from the date 4 of any order adopting these findings and recommendations. See Rule 4, Rules Governing § 2254 5 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the 6 issues presented in the petition. See Rule 5, Fed. R. Governing § 2254 Cases; and 7 8 4. Petitioner be directed to file a reply, if any, within thirty days after service of the answer. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 14 shall be served and filed within fourteen days after service of the objections. Failure to file 15 objections within the specified time may waive the right to appeal the District Court’s order. 16 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 17 1991). In his objections petitioner may address whether a certificate of appealability should issue 18 in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 19 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a 20 final order adverse to the applicant). 21 DATED: November 26, 2018. 22 23 24 25 26 27 28 2