Filed: Mar. 31, 2016
Latest Update: Mar. 31, 2016
Summary: ORDER ACCEPTING IN PART REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE VIRGINIA A. PHILLIPS , District Judge . Pursuant to 28 U.S.C. 636, the Court has reviewed Petitioner's motion for a Kelly or Rhines stay (Dkt. No. 25); the previously-assigned Magistrate Judge's July 14, 2015 Order (Dkt. No. 30) denying the stay motion; the newly-assigned Magistrate Judge's October 29, 2015 Order (Dkt. No. 35) construing the denial order as a Report And Recommendation in light of two i
Summary: ORDER ACCEPTING IN PART REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE VIRGINIA A. PHILLIPS , District Judge . Pursuant to 28 U.S.C. 636, the Court has reviewed Petitioner's motion for a Kelly or Rhines stay (Dkt. No. 25); the previously-assigned Magistrate Judge's July 14, 2015 Order (Dkt. No. 30) denying the stay motion; the newly-assigned Magistrate Judge's October 29, 2015 Order (Dkt. No. 35) construing the denial order as a Report And Recommendation in light of two in..
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ORDER ACCEPTING IN PART REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
VIRGINIA A. PHILLIPS, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed Petitioner's motion for a Kelly or Rhines stay (Dkt. No. 25); the previously-assigned Magistrate Judge's July 14, 2015 Order (Dkt. No. 30) denying the stay motion; the newly-assigned Magistrate Judge's October 29, 2015 Order (Dkt. No. 35) construing the denial order as a Report And Recommendation in light of two intervening Ninth Circuit rulings that restrict the authority of Magistrate Judges to rule on stay motions; and Petitioner's November 16, 2015 Objections to the Report. (Dkt. No. 36.)
The Court accepts in part the findings and recommendations of the Magistrate Judge. The Court agrees with the Magistrate Judge that Petitioner fails to show the required "good cause" for a Rhines stay. Rhines v. Weber, 544 U.S. 269, 277 (2005).
However, the Court concludes that a Kelly stay is available. Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). "Rhines applies to stays of mixed petitions, whereas the three-step procedure [in Kelly] applies to stays of fully exhausted petitions." King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009) (emphasis in original) (citation omitted). Petitioner does not seek to exhaust any new claims but instead wishes to exhaust additional evidentiary support, in the form of affidavits, for Ground One. Ordinarily, a petitioner seeking a Kelly stay has a mixed petition and must initially file a fully exhausted "placeholder" petition omitting any unexhausted claims. Because the current petition in this case is fully exhausted, the first step is unnecessary.
IT IS ORDERED that Petitioner's motion for a stay is GRANTED IN PART AND DENIED IN PART, subject to the following terms and conditions:
1. Petitioner shall file a habeas petition before the California Supreme Court that exhausts any unexhausted allegations within 30 days after entry of an order accepting this recommendation;
2. Petitioner shall file a status report in this court within 30 days after filing the petition in California Supreme Court. The status report shall notify this court of the case number assigned by the state court; and
3. Petitioner shall file a status report within 10 days after he receives a copy of the California Supreme Court's decision on his petition.
