Opinion
2:19-cv-02422-KJM-JDP (HC)
09-28-2021
MICHAEL LEE ROESSLER, Petitioner, v. PATRICK COVELLO, Respondent.
ORDER
Petitioner, a state prisoner proceeding with counsel, has filed this application 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 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Respondent moved to dismiss the petition. ECF No. 13. On August 9, 2021, the magistrate judge filed findings and recommendations, ECF No. 41, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. Respondent has filed objections to the findings and recommendations. ECF No. 42
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed August 9, 2021, are adopted in part;
2. Respondent's motion to dismiss, ECF No. 13, is granted in part;
3. Petitioner's third and fifth claims are dismissed without prejudice as unexhausted; and
4. The court refers the matter back to the magistrate judge for him to expand counsel's appointment as contemplated, and for all further pretrial proceedings.
In addition to general briefing on a stay, counsel may wish to clarify the timeline of petitioner's appeals and whether petitioner's pending appeal in state court prevents his judgment and sentence from being final. See Burton v. Stewart 549 U.S. 147, 156-57 (2007) (a “limitations period d[oes] not begin until both his conviction and sentence ‘became final by the conclusion of direct review or the expiration of the time for seeking such review'”).