(HC)Candelaria v. Lemon

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BARCIMEO MERINO CANDELARIA, No. 1:24-cv-01510-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION 14 TO DISMISS PETITION TRISTAN LEMON, Warden, 15 [14-DAY OBJECTION DEADLINE] Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. He filed the instant petition on December 11, 2024, challenging a 19 2022 conviction in Kern County Superior Court for numerous sex offenses. Upon review of the 20 petition, the Court determined it was a mixed petition containing unexhausted claims. Thus, on 21 December 16, 2024, Petitioner was directed to either amend the petition to delete the unexhausted 22 claims, or request dismissal of the petition without prejudice so he may return to state court to 23 exhaust his state remedies. (Doc. 4.) He was granted thirty days to do so. Over thirty days have 24 passed, and Petitioner has not complied with the Court’s order. Petitioner was advised that failure 25 to comply with the Court’s order would result in a recommendation that the petition be dismissed. 26 In light of the foregoing and for the reasons set forth in the Court’s previous order, the 27 Court will recommend the petition be dismissed without prejudice for failure to exhaust state 28 remedies. 1 2 ORDER 3 The Clerk of Court is DIRECTED to assign a district judge to the case. 4 DISCUSSION 5 The Court HEREBY RECOMMENDS that the petition be dismissed without prejudice for 6 failure to exhaust state remedies. 7 This Findings and Recommendation is submitted to the United States District Court Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 9 Local Rules of Practice for the United States District Court, Eastern District of California. Within 10 fourteen (14) days after being served with a copy of this Findings and Recommendation, a party 11 may file written objections with the Court and serve a copy on all parties. Id. The document 12 should be captioned, “Objections to Magistrate Judge’s Findings and Recommendation” and shall 13 not exceed fifteen (15) pages, except by leave of court with good cause shown. The Court will not 14 consider exhibits attached to the Objections. To the extent a party wishes to refer to any 15 exhibit(s), the party should reference the exhibit in the record by its CM/ECF document and page 16 number, when possible, or otherwise reference the exhibit with specificity. Any pages filed in 17 excess of the fifteen (15) page limitation may be disregarded by the District Judge when 18 reviewing these Findings and Recommendations pursuant to 28 U.S.C. § 636 (b)(1)(C). The 19 parties are advised that failure to file objections within the specified time may result in the waiver 20 of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014). This 21 recommendation is not an order that is immediately appealable to the Ninth Circuit Court of 22 Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, 23 should not be filed until entry of the District Court's judgment. 24 IT IS SO ORDERED. 25

26 Dated: February 3, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 27