(HC) Palmero v. Robertson

Opinion

PETER PALMERO, No. 1:20-cv-00413-NONE-SKO (HC) Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (1) TO DENY v. MOTION TO STAY AND (2) TO DISMISS PETITION IN PART JIM ROBERTSON, Warden, (Doc. Nos. 1, 3, 14, 19) Respondent. Petitioner Peter Palmero, a state prison, has petitioned the court for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 2017 conviction for possessing a sharp instrument in a penal institution. His petition is based on claims that (1) the evidence at trial was insufficient to establish the elements of the offense of conviction, (2) he was not provided effective assistance by his trial counsel and (3) he was not provided effective assistance by his appellate counsel. (Doc. No. 1 at 16, 20, 27.) Petitioner has conceded that he has failed to exhaust state remedies as to his second and third claims alleging ineffective assistance of counsel, but has brought duplicative motions for stay and abeyance seeking a stay of these federal habeas proceedings while he returns to state court to exhaust his unexhausted ineffective assistance claims. (Doc. Nos. 3, 14.) This action was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On August 12, 2020, the assigned magistrate judge issued wOASe LOU EVUNT LOIN □□ SINNER PIO ee OY ev eS

findings and recommendation recommending that petitioner’s motion for stay and abeyance be denied and that his ineffective assistance of counsel claims be dismissed because petitioner had not made the required showing justifying the granting of a stay. (Doc. No. 19 at 2-5) (citing Rhines v. Weber, 544 U.S. 269, 277-78 (2005)) Petitioner has objected to the magistrate judge’s findings and recommendations. (Doc. No. 20.) Pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this court has reviewed this case de novo and finds the pending findings and recommendations to be supported by the record and proper analysis. Having also reviewed petitioner’s objections, the court finds that petitioner has failed to meaningfully address or contradict the analysis set forth in the findings and recommendations. Accordingly, the court will adopt the pending findings and recommendations. Accordingly, the court ORDERS as follows: 1. The findings and recommendations (Doc. No. 19), filed on August 12, 2020, are ADOPTED in full; 2. Petitioner’s motions for stay and abeyance (Doc. Nos. 3, 14) are DENIED; 3. Petitioner’s second and third claims for federal habeas relief as set forth in his petition (Doc. No. 1) are DISMISSED; and 4. The matter is REFERRED BACK to the magistrate judge for further proceedings with respect to petitioner’s remaining claim for federal habeas relief. IT IS SO ORDERED. me □ “0 Dated: _ September 23, 2020 L □□ yA UNITED STATES DISTRICT JUDGE