(HC) Howell v. Black

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA RONNIE E. HOWELL, No. 1:20-cv-00731-NONE-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING IN 13 v. PART RESPONDENT’S MOTION TO DISMISS JASON BLACK, Executive Director of Atascadero State Hospital, (Doc. Nos. 23, 29) Respondent.

17 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

20 On December 18, 2020, respondent filed a motion to dismiss due to plaintiff’s alleged failure to exhaust three of his claims for federal habeas relief by first presenting them to the state’s highest court. (Doc. No. 23.) On February 12, 2021, the assigned magistrate judge issued findings and recommendations recommending that respondent’s motion to dismiss be granted in part. (Doc. No. 29.) Petitioner raises four claims in his petition, but only one claim has been exhausted. (See id. at 3.) The magistrate judge found that the instant petition is a mixed petition containing both exhausted and unexhausted claims and recommended that petitioner be allowed to either seek leave to amend or a stay and abeyance of this federal habeas action while petitioner | exhausts any unexhausted claims in state court.! (/d.) These findings and recommendations were | served upon all parties and contained notice that any objections were to be filed within twenty- | one (21) days from the date of service of that order. (Ud. at 6.) On March 8, 2021, petitioner filed | objections to the magistrate judge’s findings and recommendations. (Doc. No. 30.)

5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the | court has conducted a de novo review of the case. Having carefully reviewed the entire file, | including petitioner’s objections, the court concludes that the magistrate judge’s findings and || recommendations are supported by the record and proper analysis. Petitioner’s objections present | no grounds for questioning the magistrate judge’s analysis.

10 Accordingly, the court orders as follows: 11 1. The findings and recommendations, filed February 12, 2021 (Doc. No. 29), are 12 adopted in full; 13 2. Respondent’s motion to dismiss (Doc. No. 23) is granted in part; and 14 3. Within thirty (30) days, petitioner shall file a notice with the court indicating how 15 he wishes to proceed: 16 (a) Dismiss his unexhausted claims and proceed only on his exhausted claim in 17 this federal habeas proceeding; 18 (b) Seek a stay and abeyance under the Kelly procedure; or 19 (c) Seek a stay and abeyance under the Rhines procedure.

20 | IT IS SO ORDERED. me □ *T Dated: _ April 15, 2021 Yel A Yaad 22 UNITED STATES DISTRICT JUDGE | The findings and recommendations also explained the two different procedures available in || pursuing a stay of these federal habeas proceedings, as well as the relative advantages and disadvantages of each. (Doc. No. 29 at 3-5) (citing Rhines v. Weber, 544 U.S. 269 (2005) and | Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003)).