(HC) Fisher v. Sherman

Opinion

JACOB FISHER, No. 2:18-cv-2725-WBS-EFB P Petitioner, v. ORDER STUART SHERMAN, Warden of the California Substance Abuse Treatment Facility, Respondent. Petitioner, a state prisoner proceeding without counsel, has 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 August 6, 2019, 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 has filed objections to the findings and recommendations. 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. Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations filed August 6, 2019, are adopted in full; 2. Petitioner’s motion to stay (ECF No. 17) is GRANTED as follows: a. Petitioner is granted a stay pursuant to the procedure outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003); b. Within fourteen days from the date of service of this order, petitioner is directed to submit an amended petition which deletes his unexhausted ineffective assistance of counsel claims; c. The amended petition will be stayed and held in in abeyance to allow petitioner an opportunity to exhaust his ineffective assistance claims in state court; and d. Petitioner will then be allowed to file a third amended petition to attempt to reattach his exhausted claims. 3. Petitioner’s motion to stay and amend petition (ECF No. 16) is DENIED as moot; and 4. Respondent’s motion to dismiss (ECF No. 11) is DENIED. Dated: September 20, 2019 . - ak. ah Lhe, (LA. M4 WILLIAMB.SHUBB UNITED STATES DISTRICT JUDGE