Opinion
CV 21-7731-CAS (AGR)
08-03-2022
CORY LEE FLETCHER, Petitioner, v. S. PEERY, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHRISTINA A. SNYDER UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the Petition for Writ of Habeas Corpus and the Report and Recommendation. No objections to the Report have been filed. The Court accepts the findings and recommendation of the Report.
IT IS ORDERED that Respondent's motion to dismiss is granted only to the extent that Ground Four and portions of Ground Five (all subclaims other than instructional error) are deemed unexhausted.
IT IS FURTHER ORDERED that, within 30 days after entry of this order, Petitioner must file either (a) a motion to stay these proceedings pending exhaustion of his unexhausted claims in state court; or (b) a notice of voluntary dismissal of unexhausted claims in which he dismisses Ground Four and the unexhausted portions of Ground Five. Petitioner is referred to the Report for further discussion of these options. If Petitioner elects to file a motion to stay, Petitioner should commence exhaustion proceedings in state court promptly.
Petitioner is advised that, if he does not timely file either a motion to stay or a notice of voluntary dismissal of unexhausted claims as described above, the Court will dismiss the unexhausted claims without prejudice to Respondent's ability to contend that the unexhausted claims may alternatively be denied on the merits.
This matter is referred back to the magistrate judge for further proceedings.