(HC) Avery v. Arias

Opinion

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