Opinion
NO. CV 17-6383-JFW (AGR)
07-27-2018
IK SOTO JEON, Petitioner, v. MARTIN FRINK, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other records on file herein, the Report and Recommendation of the United States Magistrate Judge 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 Magistrate Judge.
In his Objections, Petitioner articulates additional grounds for relief in support of his motion for a stay of proceedings. Petitioner argues that his admission of the prior conviction was not knowing, intelligent and voluntary under In re Yurko, 10 Cal. 3d 857 (1974), and Boykin v. Alabama, 395 U.S. 238 (1969). Petitioner does not identify where he asserts this ground in his Petition for Writ of Habeas Corpus ("Petition") in this court. In any event, Petitioner has already raised this ground before the California Supreme Court in his petition for writ of habeas corpus in that court. (Dkt. No. 12-9 at 37-41.) Accordingly, a stay is wholly unnecessary.
Petitioner also argues that his counsel was ineffective for advising him to admit the prior conviction that increased his sentence. Petitioner asserts ineffective assistance of counsel on this basis in Ground Five in the Petition in this case and asserts that Ground Five is exhausted before the California Supreme Court. (Petition at 6, Dkt. No. 1 at 30-31.).) This court has not made a finding that Ground Five is unexhausted.
IT THEREFORE IS ORDERED that Petitioner's motion for a stay is DENIED WITHOUT PREJUDICE. The case is referred back to Magistrate Judge for further proceedings. Nothing in this order precludes Petitioner from exhausting any claims in state court. DATED: July 27, 2018
/s/_________
JOHN F. WALTER
United States District Judge