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Shorter v. Montgomery, 2:18-cv-0537 KJM AC P. (2018)

Court: District Court, E.D. California Number: infdco20181219a53 Visitors: 21
Filed: Dec. 18, 2018
Latest Update: Dec. 18, 2018
Summary: ORDER ALLISON CLAIRE , Magistrate Judge . Petitioner is a state prisoner proceeding through counsel on a fully exhausted petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. He currently seeks a stay and abeyance under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), in order to exhaust a claim based on recently passed Senate Bill 1437, which will go into effect on January 1, 2019. ECF No. 20. He asserts that the claim he seeks to pursue will include "federal constitutional
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ORDER

Petitioner is a state prisoner proceeding through counsel on a fully exhausted petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He currently seeks a stay and abeyance under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), in order to exhaust a claim based on recently passed Senate Bill 1437, which will go into effect on January 1, 2019. ECF No. 20. He asserts that the claim he seeks to pursue will include "federal constitutional issues of Fourteenth Amendment due process and equal protection." ECF No. 20-1 at 2. The motion for stay is currently set for hearing on January 9, 2019. ECF No. 21.

The parties have now filed a stipulation that the motion to stay should be granted. ECF No. 22. They further stipulate that petitioner shall file a petition in state court no later than January 30, 2019, and in the event the state petition is denied, petitioner shall file an amended petition in this case no later than thirty days after the claim has been exhausted. Id.

Good cause appearing, IT IS HEREBY ORDERED that:

1. The parties' stipulation to stay the case (ECF No. 22) is approved.

2. Petitioner's motion to stay (ECF No. 20) is GRANTED.

3. All currently pending deadlines and hearings, including petitioner's deadline to file a traverse and the January 9, 2019 hearing, are vacated.

4. Petitioner shall proceed to file a state court petition for his claim related to Senate Bill 1437 no later than January 30, 2019.

5. Petitioner shall file a case status report every sixty days, advising the court of the progress of his state habeas petition.

6. Within thirty days of a decision by the state's highest court exhausting his new claim, petitioner must notify this court of the decision and at that time request a lift of the stay and, if necessary, file an amended petition setting forth all of his exhausted claims.

7. The Clerk of the Court is directed to administratively close this case.

Source:  Leagle

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