Opinion
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
DEAN D. PREGERSON, District Judge.
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. Based upon the Court's de novo review, as modified below, the Court agrees with the recommendation of the Magistrate Judge.
Petitioner did not file objections.
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appeal on direct review has concluded, the Magistrate Judge's alternative basis ( Younger abstention) for dismissal is no longer applicable.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.