(HC) Harge v. Roberson

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA DEMARIA C. HARGE, No. 1:20-cv-01255-SKO (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DENY MOTION FOR STAY v. [Doc. 5] [TWENTY-ONE DAY DEADLINE] JIM ROBERSON, Warden, 16 Respondent.

18 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

21 Petitioner filed a habeas petition on July 13, 2020, in the United States District Court for the Northern District of California. (Doc. 1.) On September 1, 2020, the case was transferred to this Court. (Doc. 9.) Petitioner challenges a Stanislaus County Superior Court conviction for murder, murder of a fetus, vehicular manslaughter while intoxicated, evading a peace officer causing death, and driving under the influence causing injury. Petitioner acknowledged that grounds three and four of the petition were unexhausted.

27 Along with the petition, Petitioner filed a motion for stay and abeyance pending exhaustion of his state remedies as to grounds three and four. (Doc. 5.) On September 8, 2020, the Court directed the Clerk of Court to serve the motion for stay on Respondent, and granted Respondent an opportunity to respond to the motion. (Doc. 13.) On October 8, 2020, Respondent filed an opposition to the motion. (Doc. 15.) Petitioner did not file a reply. Upon review of the pleadings, the Court issued Findings and Recommendations to deny the motion for stay and to dismiss the unexhausted claims from the petition. On December 4, 2020, Petitioner filed objections to the Findings and Recommendations. (Doc. 19.)

7 While the Findings and Recommendations were pending review by the District Judge, on January 8, 2021, Petitioner lodged an amended petition in which Petitioner represents that he has exhausted his state remedies. (Doc. 20.) By separate order, the Court will vacate the Findings and Recommendations. In light of the fact that the amended petition is exhausted, the Court will recommend that the motion to stay be denied as moot.

12 RECOMMENDATION 13 For the foregoing reasons, the Court hereby RECOMMENDS that Petitioner’s motion for stay be DENIED as moot.

15 This Findings and Recommendation is submitted to the United States District Court Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California.

18 Within twenty-one (21) days after being served with a copy, any party may file written objections with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the Objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.

Sheila K. Oberto Dated: January 29, 2021 /s/ .

UNITED STATES MAGISTRATE JUDGE