Opinion
No. 1:20-cv-00588-NONE-EPG-HC
07-16-2020
MANUEL A. VELA, Petitioner, v. W.L. MONTGOMERY, Respondent.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING PETITIONER'S REQUEST TO FILE FIRST AMENDED PETITION AND MOTION TO STAY, DIRECTING CLERK OF COURT TO FILE FIRST AMENDED PETITION, AND STAYING FIRST AMENDED PETITION
(Doc. Nos. 5, 8, 10)
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 8, 2020, the assigned magistrate judge issued findings and recommendations recommending that petitioner's request to file a first amended petition and granting petitioner's request to stay the petition pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) be granted. (Doc. No. 10.) The findings and recommendations were served on petitioner and contained notice that any objections were to be filed within fourteen (14) days of the date of service. To date, no objections have been filed, and the time for doing so has passed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review. Having carefully reviewed the entire file, the court concludes that the findings and recommendation are supported by the record and proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendation issued on June 8, 2020 (Doc. No. 10) are adopted;
2. Petitioner's request to file an amended petition (Doc. No. 5) is granted;
3. Petitioner's motion for a stay under Kelly (Doc. No. 8) is granted;
4. The Clerk of Court is directed to file the first amended petition (Doc. No. 6);
5. These proceedings are stayed and administratively closed pending petitioner's exhaustion of his unexhausted claims in state court;
6. Within thirty (30) days of the date of service of this order, petitioner shall pursue state court remedies;
7. Petitioner is directed to file a status report with this court within thirty (30) days of the date of service of this order and every ninety (90) days thereafter regarding the status of his exhaustion petition; and
8. Within thirty (30) days following the final order of the state courts, petitioner shall notify the court that the unexhausted claims have been exhausted and to request that the stay be lifted and the case proceed.
Petitioner is forewarned that failure to comply with this order will result in the court vacating the stay. IT IS SO ORDERED.
Dated: July 16 , 2020
/s/_________
UNITED STATES DISTRICT JUDGE