Opinion
CV 20-8778 DMG (PVC)
12-29-2021
EDWARD ROBINSON, Petitioner, v. RAYBON JOHNSON, Warden, [1]Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, Respondent's Motion to Dismiss, Petitioner's Motion for a Stay, the records and files herein, and the Report and Recommendation of the United States Magistrate Judge. The time for filing Objections to the Report and Recommendation has passed and no Objections have been received. Accordingly, the Court accepts the findings, conclusions and recommendations of the Magistrate Judge.
IT IS ORDERED that:
(1) Petitioner's Motion for a Stay is GRANTED. This action is stayed pursuant to Rhines v. Weber, 544 U.S. 269 (2005), so that Petitioner may exhaust his ineffective assistance of counsel and cumulative error claims in Grounds One(E) and One(F).
(2) Petitioner is ORDERED to file a status report informing the Court of the status of his state court habeas petitions within 30 days of the date of this Order and every 45 days thereafter. The status reports shall attach copies of Petitioner's petitions and court orders ruling on the petitions as the petitions are filed and the orders issue. Failure to timely file status reports as required by this Order may result in the summary dismissal of Grounds One(E) and One(F) or of the Petition in its entirety as mixed. Petitioner shall file a Notice of Exhaustion within 14 days after he receives a copy of the California Supreme Court's decision disposing of his petition.
(3) Respondent's Motion to Dismiss Grounds One(E) and One(F) is DENIED.
(4) Respondent's Motion to Dismiss Ground One(B) challenging the admission of the victim's 911 statements under various provisions of the California Evidence Code is GRANTED. Ground One(B) is DISMISSED with prejudice for failure to state a cognizable federal claim.
(5) Respondent's Motion to Dismiss Ground One(D) challenging the admission of the victim's sexual assault examination statements as procedurally defaulted is DENIED, without prejudice to reasserting that defense in the event that Petitioner fails to exhaust his ineffective assistance of counsel claim.
IT IS SO ORDERED.