Opinion
CV 21-7836-CJC (AGR)
08-09-2022
DANIEL GARCIA, Petitioner, v. JIM ROBERSON, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF MAGISTRATE JUDGE
CORMAC J. CARNEY United States District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus, the other records on file herein, the Report and Recommendation of the United States Magistrate Judge (“Report”) and the Objections. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which objections have been made. The Court accepts the findings and recommendation of the Report. As the Report concludes, the petition for review before the California Supreme Court did not exhaust the grounds for relief asserted in the Petition before this Court. Although Petitioner now claims in his objections that he has exhausted all grounds for relief, Petitioner does not identify any petition before the California Supreme Court that exhausts his grounds for relief. An updated review of the California Supreme Court online database indicates that Petitioner has not filed any such petition before the California Supreme Court.
IT THEREFORE IS ORDERED as follows:
(1) Respondent's motion to dismiss is granted only to the extent that the Petition for Writ of Habeas Corpus is deemed wholly unexhausted;
(2) Petitioner is granted the option of filing, within 30 days after entry of this order, a motion to stay this case pending completion of exhaustion proceedings in state court. Petitioner should promptly commence exhaustion proceedings in state court and should not wait for a ruling on his motion for a stay.
If Petitioner does not file a timely motion to stay this case pending exhaustion or otherwise show that he has exhausted his grounds for relief before the California Supreme Court, then his Petition for Writ of Habeas Corpus in this Court would be dismissed without prejudice as wholly unexhausted.