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Huerta v. Clark

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 13, 2009

RICKEY CARL HUERTA, PETITIONER,
v.
KEN CLARK, ET AL., RESPONDENTS.

ORDER

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 General Order No. 262.

On April 11, 2008, 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 twenty days. Petitioner has filed objections to the findings and recommendations.

The magistrate judge recommended that the motion for stay be denied without prejudice. The recommendation noted that petitioner had not explained why he previously failed to exhaust the claims that he is now pursuing in the state court system. The recommendation also notes that petitioner had not addressed the potential merit of those claims, nor did he provide the specific dates necessary to analyze his contentions that a future habeas petition would be time barred.

Petitioner's objections fail to cure these defects. Moreover, his objections suggest a further reason for denying his motion. It now appears from the objections that petitioner, rather than filing a mixed petition (i.e. a petition containing both exhausted and unexhausted claims) where a stay and abeyance might be appropriate, see Rhines v. Weber, 544 U.S. 269, 277-78 (2005), has instead filed a petition containing only exhausted claims.*fn1 There is no reason for a stay and abeyance under those circumstances and the motion for stay is denied.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, 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.

Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations filed April 11, 2008, are adopted as herein modified to indicate that a stay is unnecessary; and,

2. Petitioner's January 24, 2008, motion to stay the proceedings pending exhaustion of state law claims is denied.


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