(HC) Hernandez v. Gamboa

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA LEONARDO MONDRAGON No. 1:25-cv-00018-JLT-SKO (HC) HERNANDEZ, 12 FINDINGS AND RECOMMENDATION Petitioner, TO GRANT RESPONDENT’S MOTION 13 TO DISMISS v. 14 [Doc. 9] MARTIN GAMBOA, Warden, 15 [14-DAY OBJECTION DEADLINE] 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. Petitioner filed the instant petition on January 6, 2025. (Doc. 1.) On March 6, 2025, Respondent filed a motion to dismiss the petition.

21 (Doc. 9.) Respondent contends that Grounds Three and Four are unexhausted. Respondent also contends that Ground Four fails to state a claim.

23 On April 11, 2025, Petitioner filed a reply to the motion conceding Grounds Three and Four, and requests that those claims be stricken and the case proceed on remaining Grounds One and Two. (Doc. 11.) The Court will recommend the motion be granted.

26 RECOMMENDATION 27 The Court HEREBY RECOMMENDS: 28 1) Respondent’s motion to dismiss be GRANTED; 1 2) Grounds Three and Four be STRICKEN from the petition; and 2 3) Respondent be DIRECTED to file an answer to Grounds One and Two.

3 This Findings and Recommendation is submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within fourteen (14) days after being served with a copy of this Findings and Recommendation, a party may file written objections with the Court and serve a copy on all parties. Id. The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendation” and shall not exceed fifteen (15) pages, except by leave of court with good cause shown. The Court will not consider exhibits attached to the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by the District Judge when reviewing these Findings and Recommendations pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014). This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.

IT IS SO ORDERED.

22 Dated: April 15, 2025 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE