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Hernandez v. Adams

United States District Court, Ninth Circuit, California, E.D. California
Feb 17, 2010
1:08-cv-00254 LJO YNP [DLB] (HC) (E.D. Cal. Feb. 17, 2010)

Opinion


ANGEL MORALES HERNANDEZ, Petitioner, v. DARREL G. ADAMS, Warden, Respondent. No. 1:08-cv-00254 LJO YNP [DLB] (HC). United States District Court, E.D. California. February 17, 2010

          FINDINGS AND RECOMMENDATIONS REGARDING RESPONDENT'S MOTION TO DISMISS [Doc. #18.]

          DENNIS L. BECK, Magistrate Judge.

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         BACKGROUND

         On September 30, 2006, Petitioner filed a petition for writ of habeas corpus with the Monterey County Superior Court. (Mot. to Dismiss, Ex. 1.) The Superior Court denied the petition on January 22, 2007, on the ground that the petition was not properly served. (Mot. to Dismiss, Ex. 2.)

         On February 19, 2007, Petitioner field a petition for writ of habeas corpus with the California Court of Appeal, Sixth Appellate District. (Mot. to Dismiss, Ex. 3.) On April 11, 2007, the Appellate Court found that the Superior Court erred in its finding that the petition was improperly served. Noting that the Superior Court was prepared to consider the petition on the merits, the Appellate Court denied the petition without prejudice so Petitioner could re-file in the Superior Court. (Mot. to Dismiss, Ex. 4.)

         On December 3, 2007, Petitioner filed an amended petition for writ of habeas corpus with this Court. (Doc. #7.) On February 9, 2009, Respondent filed a motion to dismiss claiming that Petitioner had not exhausted his state remedies because no State court has yet heard the petition on the merits. (Doc. #18.) On March 9, 2009 Petitioner moved the Court to stay his petition while he exhausted his claims in State court. (Doc. #42.) This Court granted that motion and ordered the case stayed on May 1, 2009. (Doc. #43).

         It has come to the Court's attention that this case was never actually stayed on the docket; however, Petitioner has diligently filed status reports every 60 days from the date of this Court's order. Due to the fact that no State court has had a full and fair opportunity to consider each claim in the petition, the interests of comity and justice are better served by staying the petition pending exhaustion rather than dismissing the petition outright. Respondent's motion to dismiss should be denied.

         RECOMMENDATION

         Accordingly, the Court HEREBY RECOMMENDS that:

         1) Respondent's motion to dismiss be DENIED;

         2) the Clerk of the Court be DIRECTED to STAY this matter pending exhaustion;

         3) Petitioner be DIRECTED to continue filing status reports entitled "Status Report" every sixty (60) days as prescribed by this Court's May 1, 2009 order; and

         4) Respondent be DIRECTED to an answer to the petition within sixty (60) days of this order in accordance with the order issued by this Court on December 9, 2008 (Doc. #12).

         This Findings and Recommendation is submitted to the Honorable Oliver W. Wanger, United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy of this Findings and Recommendation, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the Objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the Objections. The Finding and Recommendation will then be submitted to the District Court for review of the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the Order of the District Court. MartineYlst, 951 F.2d 1153 (9th Cir. 1991).

         IT IS SO ORDERED.


Summaries of

Hernandez v. Adams

United States District Court, Ninth Circuit, California, E.D. California
Feb 17, 2010
1:08-cv-00254 LJO YNP [DLB] (HC) (E.D. Cal. Feb. 17, 2010)
Case details for

Hernandez v. Adams

Case Details

Full title:ANGEL MORALES HERNANDEZ, Petitioner, v. DARREL G. ADAMS, Warden…

Court:United States District Court, Ninth Circuit, California, E.D. California

Date published: Feb 17, 2010

Citations

1:08-cv-00254 LJO YNP [DLB] (HC) (E.D. Cal. Feb. 17, 2010)