Arias

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STERLING LAMONT AVERY, No. 2:23-cv-1612 DJC KJN P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 ROBERTO ARIAS, Warden, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 under 28 U.S.C. § 2254. Petitioner challenges his 2020 conviction for first degree murder with a 19 gun enhancement. Respondent’s motion to dismiss and petitioner’s motion for stay are before the 20 court. 21 As discussed below, the undersigned recommends that petitioner’s motion for stay be 22 denied, respondent’s motion to dismiss be granted, and that petitioner be granted leave to amend 23 to assert only exhausted claims one through four. 24 Legal Standards 25 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 26 petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the 27 petitioner is not entitled to relief in the district court. . .…