(HC) Popke v. Andes

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 DOUGLAS LOUIS POPKE, ) Case No.: 1:24-cv-0779 JLT EPG ) 12 Petitioner, ) ORDER ADOPTING IN FULL THE FINDINGS ) AND RECOMMENDATIONS, DISMISSING 13 v. ) UNEXHAUSTED CLAIMS, AND ALLOWING ) PETITIONER TO PROCEED WITH HIS 14 CHANCE ANDES, ) EXHAUSTED CLAIM ) 15 Respondent. ) (Doc. 15) ) 16

17 Douglas Louis Popke is a state prisoner proceeding pro se with a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254, raising three grounds for relief: (1) ineffective assistance of 19 counsel; (2) prosecutorial misconduct; and (3) insufficient evidence to support conviction due to Fourth 20 Amendment violation. (Doc. 1 at 4-5.) The magistrate judge found Petitioner did not exhaust his first 21 two grounds for relief before the California Supreme Court. (Doc. 8; see also Doc. 15 at 2.) Petitioner 22 elected to proceed only with his exhausted ground. (Doc. 13.) Therefore, the magistrate judge 23 recommended the Court dismiss the unexhausted grounds and permit Petitioner to “proceed with the 24 exhausted sufficiency of the evidence claim.” (Doc. 15 at 3.) 25 The Court served the Findings and Recommendations on Petitioner and notified him that any 26 objections were due within 14 days. (Doc. 15 at 3.) The Court advised him that the “failure to file 27 objections within the specified time may waive the right to appeal the District Court’s order.” (Id. at 4, 28 citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Petitioner did not file objections, 1 || and the time to do so has passed. 2 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. Havi 3 || carefully reviewed the matter, the Court concludes the Findings and Recommendations are supported 4 || by the record and proper analysis. Thus, the Court ORDERS: 5 1. The Findings and Recommendations dated February 13, 2025 (Doc. 15) are 6 ADOPTED in full. 7 2. The unexhausted first and second grounds for relief are DISMISSED. 8 3. Petitioner SHALL proceed only with the third ground for relief related to sufficiency 9 of the evidence. 10 4. The matter is referred the magistrate judge for further proceedings. 11 12 ||IT IS SO ORDERED. 13 Dated: _ March 12, 2025 Charis [Tourn 14 TED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28