1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COSTELLO BLACKWELL, No. 2:25-cv-00032-DC-CSK (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS

14 PEOPLE OF THE UNITED STATES OF CALIFORNIA, (ECF Nos. 15, 16) 15 Respondent. 16

17 18 Petitioner, a state prisoner proceeding pro se, filed an application for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 20 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On March 31, 2025, the magistrate judge filed findings and recommendations herein 22 which were served on petitioner and which contained notice to petitioner that any objections to 23 the findings and recommendations were to be filed within fourteen days. Petitioner did not file 24 objections to the findings and recommendations. 25 The court presumes that any findings of fact are correct. See Orand v. United States, 602 26 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 27 See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having 28 /// 1 | reviewed the file, the court finds the findings and recommendations to be supported by the record 2 | and by the magistrate judge’s analysis. 3 The findings and recommendations recommended that petitioner be granted thirty days 4 | from any order by the district court adopting the findings and recommendations to choose one of 5 | the following options: 6 (a) renew the motion for stay under Rhines v. Weber, 544 U.S. 269 (2005), accompanied by an amended petition that includes the 7 unexhausted ineffective assistance of trial counsel claim; or 8 (b) file a motion for stay under Kelly v. Small, 315 F.3d 1063 (9th 9 Cir. 2003); or (c) proceed with the petition filed May 22, 2024, choosing to pursue 10 only those three claims identified therein: (1) prosecution admitted false testimony about the DNA evidence; (2) the trial court erred 11 when prosecution was allowed to admit evidence about the uncharged murder of Huckaby; and (3) the trial court erred in 12 excluding evidence Cortez made a statement that contradicted his 3 testimony that Blackwell shot him. (ECF No. 6 at 3-9). 14 | (ECF No. 16 at 5.) However, on April 22, 2025, while the findings and recommendations were 15 || pending before the undersigned, petitioner filed another motion for a stay and abeyance. (ECF 16 | No. 17.) Therefore, petitioner has already opted to file a motion for a stay and that motion is now 17 | pending consideration by the magistrate judge. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. The findings and recommendations (ECF No. 16) are adopted; 20 2. Petitioner’s motion for stay and abeyance (ECF No. 15) is denied without 21 prejudice; and 22 3. This matter is referred back to the assigned magistrate judge for consideration of 23 the motion for a stay filed by petitioner on April 22, 2025. (ECF No. 17). 24 95 IT IS SO ORDERED. □ | Dated: _ September 16, 2025 RY os Dena Coggins 27 United States District Judge 28