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Elonda Renee Cole v. People of the State of California

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


March 31, 2011

ELONDA RENEE COLE, PETITIONER,
v.
PEOPLE OF THE STATE OF CALIFORNIA, RESPONDENT.

The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the Petition, the Magistrate Judge's Report and Recommendation ("R&R"), and the records and files.*fn1 Based upon the Court's de novo review, as modified below, the Court agrees with the recommendation of the Magistrate Judge.

The R&R noted that Petitioner's appeal of her re-sentencing was still pending as of August 20, 2010, when the R&R was filed. (R&R at 2, 4; Dkt. No. 8.) On October 1, 2010, the California Court of Appeal granted Petitioner's request for dismissal of the appeal. California Appellate Courts Online Docket in Case No. E050871. Because Petitioner's appeal on direct review has concluded, the Magistrate Judge's alternative basis (Younger abstention) for dismissal is no longer applicable. (R&R at 4-5.) However, Petitioner's state habeas petition before the California Supreme Court is still pending. California Appellate Courts Online Docket in Case No. S184365. Accordingly, dismissal without prejudice based on failure to exhaust is still required. (R&R at 4.)

IT IS ORDERED that Judgment be entered denying the Petition and dismissing this action without prejudice.


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