Opinion
2:22-cv-01896-DJC-CKD (HC)
09-02-2023
JEFFREY MICHAEL CAYLOR, Petitioner, v. P. COVELLO, Respondent.
ORDER
HON. DANIEL J CALABRETTA, UNITED STATES DISTRICT JUDGE
Petitioner, a state prisoner proceeding pro se, 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 Rule 302.
On May 31,2023, 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. Neither party filed objections to the findings and recommendations.
The Court presumes that any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The Magistrate Judge's conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). The Court has reviewed the file and finds the findings and recommendations to be supported by the record and by the Magistrate Judge's analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed May 31, 2023 are adopted.
2. Petitioner's motion for a stay (ECF No. 5) is denied to the extent that it requests a Rhines stay, but granted to the extent that it seeks a Kelly stay.
3. Respondent's motion to dismiss (ECF No. 14) is denied without prejudice to raising the statute of limitations defense once the stay of this case is lifted.
4. Petitioner is directed to file an amended § 2254 petition within 30 days from the date of this order which deletes claims three and four of his original § 2254 petition.
5. Petitioner shall initiate proceedings in state court within 180 days of this Order. Failure to do so may result in the Court lifting the stay and ordering the petition to proceed on the exhausted claims.
6. Petitioner is further directed to file a status report with the court every 90 days indicating what step(s) he has taken to exhaust his state court remedies.
7. Within 30 days of the completion of state habeas review by the California Supreme Court, petitioner is ordered to file a motion to lift the stay of this case along with an amended § 2254 petition containing all exhausted claims for relief.
IT IS SO ORDERED.