(HC) Gonzalez v. Smith

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JOSE ALBERTO GONZALEZ, No. 2:24-cv-00810-DC-AC (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS STEVEN SMITH, (Doc. Nos. 13, 20, 23) 15 Respondent.

17 Petitioner Jose Alberto Gonzalez is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The 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 October 1, 2024, the assigned magistrate judge issued findings and recommendations recommending that: (i) Respondent’s motion to dismiss the petition for federal habeas relief because it is a mixed petition, containing both an exhausted claim and an unexhausted claim (Doc. No. 13) be granted; (ii) Petitioner’s motion for stay and abeyance (Doc. No. 20) be denied under the procedure of Rhines v. Weber, 544 U.S. 269 (2005), for lack of good cause shown; (iii) and this case be stayed under the procedure of Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) overruled on other grounds by Robbins v. Carrey, 481 F.3d 1143 (9th Cir. 2007). (Doc. No. 23.)

27 Further, consistent with the Kelly stay procedure, the magistrate judge also recommends that Petitioner be directed to: (i) file an amended § 2254 federal habeas petition which deletes Petitioner’s unexhausted claims 1(a), 1(b), 2, and 3, and presents only his exhausted claim 4, within thirty days; (ii) file a status report with the court every 90 days indicating what steps he has taken to exhaust his claims in state court; (iii) file a motion to lift the stay of this case within 30 days from the date the California Supreme Court issues an opinion on any state habeas petition brought by Petitioner; and (iv) concurrently file a second amended § 2254 petition that contains all his claims for relief, including those recently exhausted in state court. (Id. at 8.)

7 The pending findings and recommendations were served on the parties and contained notice that any objections thereto were to be filed within twenty-one (21) days after service. (Id. at 8.) On November 18, 2024, the court granted Petitioner’s request for an extension of time in which to file objections, providing Petitioner with thirty days from the date of service of that order to file objections to the pending findings and recommendations. (Doc. No. 26.)

12 Nevertheless, to date, no objections have been filed and the time in which to do so has now passed.

14 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, the court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court concludes that the findings and recommendations are supported by the record and proper analysis.

18 Accordingly: 19 1. The findings and recommendations issued on October 1, 2024 (Doc. No. 23) are 20 adopted in full; 21 2. Respondent’s motion to dismiss Petitioner’s mixed petition (Doc. No. 13) is 22 granted; 23 3. Petitioner’s federal habeas petition (Doc. No. 1) is dismissed; 24 4. Petitioner’s motion for a stay and abeyance under Rhines v. Weber, 544 U.S. 269 25 (2005) (Doc. No. 20) is denied; 26 5. This case is stayed and held in abeyance under Kelly v. Small, 315 F.3d 1063 (9th 27 Cir. 2003); 28 6. Within thirty (30) days from the date of this order, Petitioner shall file a first 1 amended federal habeas petition that deletes his unexhausted claims 1(a), 1(b), 2, 2 and 3, and presents only his exhausted claim 4; 3 7. Once the first amended federal petition is filed, this action shall be stayed pursuant 4 to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), to allow petitioner an opportunity 5 to complete exhaustion of his unexhausted claims in state court; 6 8. Petitioner is directed to file a status report within ninety (90) days of the date of 7 entry of this order, and every 90 days thereafter, advising the court of what steps 8 he has taken to exhaust his claims in state court; 9 9. Within thirty (30) days after the state court issues a final order resolving the 10 unexhausted claims, petitioner shall file a motion to lift the stay and, if he wishes 11 to pursue newly exhausted claims in this federal habeas action, petitioner shall also 12 file a second amended federal petition setting forth all exhausted claims; and 13 10. This action is referred back to the magistrate judge for proceedings consistent with 14 this order.

16 IT IS SO ORDERED. □ | Dated: _January 8, 2025 __ RUC Dena Coggins 18 United States District Judge