(HC) Cerpa v. Matterson, No. 2:2020cv02345 - Document 20 (E.D. Cal. 2021)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 5/6/2021 RECOMMENDING respondent's 13 motion to dismiss be granted; the 1 petition be dismissed without prejudice to filing a new petition upon completion of state court proceedings; the court decline to issue the certificate of appealability referenced in 28 U.S.C. § 2253; and the Clerk be directed to close the case. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JAIME EDEN CERPA, 11 Petitioner, 12 13 v. GIGI MATTERSON, 14 Respondent. 15 Case No. 2:20-cv-02345-TLN-JDP (HC) FINDINGS AND RECOMMENDATIONS THAT RESPONDENT’S MOTION TO DISMISS BE GRANTED AND THE PETITION BE DISMISSED WITHOUT PREJUDICE OBJECTIONS DUE IN FOURTEEN DAYS ECF No. 13 16 Petitioner Jaime Eden Cerpa, a state prisoner, filed a petition for a writ of habeas corpus 17 18 under 28 U.S.C. § 2254. ECF No. 1. Respondent has filed a motion to dismiss in which she 19 argues that the petition was prematurely filed because petitioner’s state court re-sentencing is 20 pending. ECF No. 13 at 1. Petitioner filed a statement of non-opposition that concedes that the 21 petition’s dismissal without prejudice is appropriate at this juncture. ECF No. 18. Accordingly, I 22 recommend that: 23 1. Respondent’s motion to dismiss, ECF No. 13, be granted. 24 2. The petition, ECF No. 1, be dismissed without prejudice to filing a new petition upon 25 completion of state court proceedings. 3. The court decline to issue the certificate of appealability referenced in 28 U.S.C. § 26 27 28 2253. 4. The Clerk of Court be directed to close the case. 1 1 These findings and recommendations are submitted to the U.S. district judge presiding 2 over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the 3 service of the findings and recommendations, the parties may file written objections to the 4 findings and recommendations with the court and serve a copy on all parties. That document 5 must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 6 presiding district judge will then review the findings and recommendations under 28 U.S.C. 7 § 636(b)(1)(C). 8 IT IS SO ORDERED. 9 10 11 Dated: May 6, 2021 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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