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15-005 - McFarland v. Ballard


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15-005 - McFarland v. Ballard
July 8, 2016
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REPORT AND RECOMMENDATION; Magistrate Judge recommends that re Respondents Motion to Dismiss Petitioners ยง2254 Petition as untimely ECF No. 14 be DENIED and DISMISSED WITH PREJUDICE, Respondents Motion for Summary Judgment ECF No 23 be DISMISSED WITHOUT PREJUDICE; Respondents Motion to Dismiss for Failure to Exhaust ECF No.31 be DISMISSED WITHOUT PREJUDICE; and Petitioners Motion to Proceed with Martinez Claims or Stay ECF No. 38 be DENIED with respect to his request to proceed and GRANTED with respect to his request for a stay and abeyance. Magistrate Judge further recommends Petitioner be directed to (1) file his State Court claims within thirty (30) days of this matter being stayed; (2) file quarterly reports, beginning October 1, 2016, explaining the status of his unexhausted claims; and (3) file a Notice of Exhaustion within thirty (30) days from the date his state court remedies have been fully exhausted. Petitioner should be forewarned that failure to do so will result in dismissal of his Petition. Within fourteen 14 days of the filing of this recommendation, file with the Clerk of Court written objections identifying those portions of the recommendation to which objection is made and the basis for such objections. Signed by Magistrate Judge Robert W. Trumble on 7/8/2016. (Copy pro se Petitioner via certified mail)(jmm) (Additional attachment(s) added on 7/8/2016: # (1) Certified Mail Return Receipt) (jmm).
July 29, 2016
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ORDER ADOPTING MAGISTRATE JUDGE'S OPINION/REPORT AND RECOMMENDATION; Court ADOPTS the R&R Dkt. No. 40; DENIES the respondent's motion to dismiss the petition as untimely Dkt. No. 14; DENIES the respondents motion for summary judgment Dkt. No. 23; DENIES the respondents motion to dismiss for failure to exhaust Dkt. No. 31; GRANTS IN PART AND DENIES IN PART the petitioners motion to proceed with Martinez claims or to stay the proceeding pending exhaustion Dkt. No. 38; STAYS the case. Court DIRECTS the petitioner to file his unexhausted claims in state court within 30 days of receipt of this Order. Signed by District Judge Irene M. Keeley on 7/29/2016. (copy Counsel of record via CM/ECF, Copy pro se petitioner via certified mail)(jmm) (Additional attachment(s) added on 7/29/2016: # (1) Certified Mail Return Receipt) (jmm).