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Hayes v. Yates

United States District Court Central District of California


May 26, 2009

RICHARD WARREN HAYES, PETITIONER,
v.
JAMES YATES, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Stephen G. Larson United States District Judge

ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the magistrate judge's report and recommendation; respondent's motion to dismiss and lodged documents; and petitioner's request to proceed on grounds one and two of the petition, which request was submitted in lieu of objections to the report and recommendation.

The Court agrees with the recommendation of the magistrate judge that the petition should be dismissed without prejudice because petitioner has not exhausted his state remedies.*fn1 See 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)(holding that "mixed" petitions that include both exhausted and unexhausted grounds must be dismissed).

In the report and recommendation, filed on April 27, 2009, the magistrate judge gave petitioner leave to submit a first-amended petition asserting only unexhausted grounds. In his May 18, 2009, request to proceed, however, petitioner continues to press not only the petition's single exhausted ground, ground two, but also one of its unexhausted grounds, ground one.

Accordingly, IT IS ORDERED THAT:

1. The report and recommendation is accepted.

2. Judgment shall be entered consistent with this order.

3. The clerk shall serve this order and the judgment on all counsel or parties of record.


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