(HC) Avery v. Arias

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STERLING LAMONT AVERY, No. 2:23-cv-1612 DJC KJN P 12 Petitioner, 13 v. ORDER 14 ROBERTO ARIAS, Warden, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, filed an application for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On March 1, 2024, the Magistrate Judge filed findings and recommendations 21 herein which were served on all parties, and which contained notice to all parties that 22 any objections to the findings and recommendations were to be filed within fourteen 23 days. Neither party filed objections to the findings and recommendations. 24 The Court presumes that any findings of fact are correct. See Orand v. United 25 States, 602 F.2d 207, 208 (9th Cir. 1979). The Magistrate Judge’s conclusions of law 26 are reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 27 (9th Cir. 1983). The Court has reviewed the file and finds the findings and 28 recommendations to be supported by the record and by the magistrate judge’s 1 || analysis. 2 After the objection period expired, petitioner filed his amended petition. (ECF 3 || No. 16.) Therefore, the proposed orders are modified to provide that respondent file 4 || aresponsive pleading within twenty-one days from the date of this order. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The findings and recommendations (ECF No. 15) are ADOPTED IN FULL; 7 2. Petitioner’s motion for stay (ECF No. 12) under Rhines v. Weber, 544 U.S. 8 269, 278 (2005), be DENIED; 9 3. Respondent's motion to dismiss (ECF No. 10) be GRANTED; 10 4. The petition for writ of habeas corpus (ECF No. 1) be DISMISSED; 11 5. Respondent is DIRECTED to file a responsive pleading within twenty-one 12 days from the date of this order; and 13 6. The Court DECLINES to issue the certificate of appealability referenced in 28 14 U.S.C. § 2253 as Petitioner has not made a substantial showing of the denial 15 of a constitutional right, see 28 U.S.C. § 2253(c)(2). 16 17 This matter is referred back to the assigned Magistrate Judge for all further pretrial 18 || proceedings. 19 20 IT 1S SO ORDERED. 21 22 | Dated: _ April 11, 2024 “Dane A bnettr— 33 Hon. Daniel alabretta UNITED STATES DISTRICT JUDGE 24 25 26 | javer1612.801he 27 28