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Rider v. Kernan

United States District Court, E.D. California
Feb 6, 2006
No. CIV S-04-1809-GEB-CMK-P (E.D. Cal. Feb. 6, 2006)

Opinion

No. CIV S-04-1809-GEB-CMK-P.

February 6, 2006


FINDINGS AND RECOMMENDATIONS


Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently pending before the court are petitioner's petition (Doc. 1) and petitioner's motion for an order staying the instant proceedings and holding consideration of his claims in abeyance pending exhaustion of state remedies ("stay-and-abeyance order") (Doc. 13). Also before the court is respondent's motion to dismiss (Doc. 9).

The instant petition raises five claims. Petitioner initially raised all five claims to the state court in his initial brief on direct appeal. The Court of Appeal rejected his claim and affirmed his conviction and sentence. Petitioner abandoned two of the claims by not raising them in his brief to the California Supreme Court. The court notes that petitioner was represented by counsel at all stages of his state court proceedings. In his motion for a stay-and-abeyance order, petitioner fails to establish good cause for failing to present all of the claims raised here to the highest state court. Given that petitioner was represented by counsel at his state court proceedings, it appears that he purposefully chose not to pursue two of his claims. He cannot now ask this court to consider claims which he chose not to present to the state court. Therefore, petitioner's motion for a stay-and-abeyance order should be denied.

Petitioner references a sixth claim in his stay-and-abeyance order. No such claim exists.

Based on the foregoing, the undersigned recommends that Petitioner's motion for a stay-and-abeyance order be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order.Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


Summaries of

Rider v. Kernan

United States District Court, E.D. California
Feb 6, 2006
No. CIV S-04-1809-GEB-CMK-P (E.D. Cal. Feb. 6, 2006)
Case details for

Rider v. Kernan

Case Details

Full title:ANDRE RIDER, Petitioner, v. S. KERNAN, Respondent

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

Date published: Feb 6, 2006

Citations

No. CIV S-04-1809-GEB-CMK-P (E.D. Cal. Feb. 6, 2006)