(HC)Tellez v. Matteson

Opinion

ELPIDIO D. TELLEZ, No. 2:22-cv-00404-TLN-CKD Petitioner, v. ORDER GIGI MATTESON, Warden, Respondent. Petitioner, a state prisoner proceeding pro se, 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 May 11, 2022, the magistrate judge filed findings and recommendations herein which were served on Petitioner and which contained notice to Petitioner that any objections to the findings and recommendations were to be filed within fourteen days. (ECF No. 5.) Petitioner has filed objections to the findings and recommendations. (ECF No. 6.) In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and by proper analysis. /// Petitioner requests that this matter be stayed pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) as an alternative to the dismissal recommended by the magistrate judge. However, a Kelly stay is only appropriate if state court remedies have been exhausted with respect to at least one claim. See King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009). That is not the case here. Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner’s request that this matter be stayed is DENIED; 2. The Findings and Recommendations filed May 11, 2022, (ECF No. 5), are adopted in full; 3. Petitioner’s Petition for Writ of Habeas Corpus is summarily DISMISSED; 4. The Clerk is directed to close the case; and 5. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253. DATED: July 18, 2022 /) Sun Yaske Troy L. Nunley” . } United States District Judge