Opinion
Case No. CV 19-8179 MWF (PVC)
08-14-2020
PRINCE L. JORDAN, Petitioner, v. MARCUS POLLARD, Warden, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition, Respondent's Motion to Dismiss, all of the records and files herein, and the Magistrate Judge's Report and Recommendation. The time for filing Objections to the Report and Recommendation has passed and no Objections have been received. Accordingly, the Court accepts and adopts the findings, conclusions and recommendations of the Magistrate Judge. However, the Court corrects the citation to Kelly v. Small on page 3, lines 9-10, to include the reporter reference: 315 F.3d 1063.
IT IS ORDERED that:
(1) Respondent's Motion to Dismiss is granted.
(2) Petitioner's request for a stay under Rhines v. Weber, 544 U.S. 269 (2005), is denied. A stay under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007), is likewise denied.
(3) Petitioner shall have thirty days from the date of this Order to voluntarily dismiss his unexhausted claims in Grounds 1(a), 1(b), 1(d) and 2. A form order of dismissal is attached hereto for Petitioner's convenience.
(4) If Petitioner timely dismisses his unexhausted claims, Respondent shall file an Answer to the exhausted claim in Ground 1(c) within thirty days of the date of the dismissal.
(5) If Petitioner does not dismiss his unexhausted claims by the Court's deadline, the First Amended Petition shall be denied as mixed and judgment shall be entered dismissing this action without prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order on Petitioner at his current address of record and on counsel for Respondent.
IT IS SO ORDERED. DATED: August 14, 2020
/s/_________
MICHAEL W. FITZGERALD
UNITED STATES DISTRICT JUDGE