(HC) Thurman v. Johnson, No. 2:2020cv00079 - Document 40 (E.D. Cal. 2021)
Court Description: ORDER signed by Chief District Judge Kimberly J. Mueller on 12/13/2021 ADOPTING 36 Findings and Recommendations in full, STAYING this action pending petitioner's exhaustion of his ineffective assistance of counsel claims in the California Supreme Court. (Coll, A)
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(HC) Thurman v. Johnson Doc. 40 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 KENNETH LLOYD THURMAN, 13 14 15 16 No. 2:20-cv-0079-KJM-EFB P Petitioner, v. ORDER RAYMOND JOHNSON, Warden, Respondent. 17 18 Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas 19 corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as 20 provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On September 13, 2021, the magistrate judge filed findings and recommendations, which 22 were served on all parties and which contained notice to all parties that any objections to the 23 findings and recommendations were to be filed within fourteen days. Respondent has filed 24 objections to the findings and recommendations. See ECF No. 38. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 26 court has conducted a de novo review of this case. The court notes that the case Dixon v. Baker, 27 847 F.3d 714, 720-21 (9th Cir. 2017), cited by the magistrate judge at page 5, lines 22–44, of the 28 1 Dockets.Justia.com 1 findings and recommendations, is precedential. “A petitioner cannot have had effective 2 assistance of counsel if he had no counsel at all.” Id. at 721. Requiring petitioner to come 3 forward with additional evidence over and above the fact that he lacked counsel to show “good 4 cause” for the court to stay his claims for ineffective assistance of counsel, as respondent argues 5 in his objections, see generally ECF No. 38, is inconsistent with this Circuit’s previous decision 6 in Blake v. Baker, 745 F.3d 977 (9th Cir. 2014) and the Supreme Court’s decision in Martinez v. 7 Ryan, 566 U.S. 1 (2012). Accordingly, having carefully reviewed the file, the court finds the 8 findings and recommendations to be supported by the record and by proper analysis. 9 IT IS HEREBY ORDERED that: 10 1. The findings and recommendations filed September 13, 2021, are adopted in full; and 11 2. This action is STAYED pending petitioner’s exhaustion of his ineffective assistance of 12 counsel claims in the California Supreme Court. 13 DATED: December 13, 2021. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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