Opinion
2:20-cv-00079-DJC-EFB (HC)
06-21-2023
KENNETH LLOYD THURMAN, Petitioner, v. RAYMOND JOHNSON, Warden, Respondent.
ORDER
HON. DANIEL J. CALABRETTA UNITED STATES DISTRICT JUDGE.
Petitioner, a state prisoner proceeding pro se, has filed this 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 25, 2023, the Magistrate Judge filed Findings and Recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. (ECF No. 43.) Petitioner has filed objections to the findings and recommendations. (ECF No. 44.)
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.
On December 14, 2021, this action was stayed so that Petitioner could seek to exhaust his ineffective assistance of counsel claims in the California Supreme Court. (ECF No. 40.) Petitioner was not given any deadlines by which to file a state petition. (See id.) Petitioner filed lengthy objections that raise a number of arguments against the recommendation that the stay in this action be lifted and this case be dismissed. (See ECF No. 44.) The bulk of Petitioner's objections are not relevant or seek to relitigate the issue of exhaustion previously decided when this action was stayed. (See ECF Nos. 28, 35.) However, Petitioner's objections do raise concerns about the potential lack of clarity about what was expected of Petitioner when this action was stayed. While the Magistrate Judge's reasoning in the Findings and Recommendations is sound, based on Petitioner's statements in his objections and out of an abundance of caution, the Court will permit Petitioner a final opportunity to seek exhaustion of his ineffective assistance of counsel claims before the California Supreme Court. Petitioner will be given a set deadline by which to file a petition with that court and notify this Court of his compliance with this order. Failure to comply with this order will result in dismissal of this action.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations filed May 25, 2023, are NOT ADOPTED;
2. On or before December 21, 2023, Petitioner shall file proof with this court that he has filed an action with the California Supreme Court seeking to exhaust his ineffective assistance of counsel claims; and
3. Failure to comply with this order will result in an order dismissing this action.
IT IS SO ORDERED.