Opinion
2:19-CV-00377-KJM-DMC-P
01-12-2023
GENNEL EDWARD MILES, JR., Petitioner, v. W.J. SULLIVAN, Respondent.
ORDER
Petitioner, a state prisoner proceeding with retained counsel, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as provided by Eastern District of California local rules.
On September 12, 2022, the Magistrate Judge filed findings and recommendations, which were served on the parties and which contained notice that the parties may file objections within fourteen days. No objections to the findings and recommendations have been filed.
The court presumes that any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge's conclusions of law are reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[Determinations of law by the magistrate judge are reviewed de novo by both the district court and [the appellate] court . . . .”). Having reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis. The court adds petitioner has shown good cause for a stay pending exhaustion of claims in state court, as petitioner “lacked the effective assistance of counsel during state postconviction review proceedings.” Cage v. Montgomery, 812 Fed.Appx. 679, 680 (9th Cir. 2020); see also Rhines v. Weber, 544 U.S. 269, 277 (2005) (stating the court must determine good cause before the court exercises its discretion to issue a stay-and-abeyance order).
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed on September 12, 2022, ECF No. 55, are adopted in full;
2. Petitioner's unopposed motion for an order staying this case, ECF No. 52, is granted;
3. Within 60 days of the date of this order, and every 60 days thereafter until further order of this Court, petitioner shall file a report on the status of exhaustion proceedings in state court; and
4. The matter is referred back to the assigned Magistrate Judge to monitor the case and for further proceedings, including lifting the stay upon completion of state court exhaustion proceedings.