Lemmons v. Gonzalez, EDCV 15-1871-GW (DFM). (2016)
Court: District Court, C.D. California
Number: infdco20161216790
Visitors: 24
Filed: Dec. 13, 2016
Latest Update: Dec. 13, 2016
Summary: Order Accepting Findings and Recommendation of United States Magistrate Judge GEORGE H. WU , District Judge . Pursuant to 28 U.S.C. 636, the Court has reviewed the petition, the other records on file herein, and the Report and Recommendation of the United States Magistrate Judge. Petitioner has not filed any written objections to the report. The Court accepts the findings and recommendation of the Magistrate Judge. IT IS THEREFORE ORDERED that: (1) Petitioner's request for a stay-and-ab
Summary: Order Accepting Findings and Recommendation of United States Magistrate Judge GEORGE H. WU , District Judge . Pursuant to 28 U.S.C. 636, the Court has reviewed the petition, the other records on file herein, and the Report and Recommendation of the United States Magistrate Judge. Petitioner has not filed any written objections to the report. The Court accepts the findings and recommendation of the Magistrate Judge. IT IS THEREFORE ORDERED that: (1) Petitioner's request for a stay-and-abe..
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Order Accepting Findings and Recommendation of United States Magistrate Judge
GEORGE H. WU, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the petition, the other records on file herein, and the Report and Recommendation of the United States Magistrate Judge. Petitioner has not filed any written objections to the report. The Court accepts the findings and recommendation of the Magistrate Judge.
IT IS THEREFORE ORDERED that:
(1) Petitioner's request for a stay-and-abeyance under Rhines v. Weber, 544 U.S. 269, 277 (2005), is DENIED; and
(2) Petitioner's rest for a stay under Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), is GRANTED on the following conditions:
a. Petitioner shall, within thirty (30) days of the service date of this Order, file a Notice of Withdrawal withdrawing the unexhausted claims in the Petition, namely, Petitioner's first, second, fifth, and sixth grounds for relief;
b. If Petitioner has not already done so, he shall present all of the unexhausted claims that he still desires to attempt to raise in a future amendment to this Petition in a petition for writ of habeas corpus that shall be filed in the California Supreme Court within sixty (60) days of the service date of the Order;
c. Forthwith upon the filing of his California Supreme Court habeas petition, Petitioner shall lodge a conformed copy of the same with this Court;
d. Assuming Petitioner does not obtain habeas relief from the California Supreme Court, the Petition shall be held in abeyance until thirty (30) days after the California Supreme Court issues its order denying Petitioner's habeas petition. Within that period of time, Petitioner shall serve and file a motion to amend his Petition to add his newly exhausted claims. The motion to amend shall be made in strict compliance with Local Rules 15-1 and 15-2;
e. Within thirty (30) days of service of Petitioner's motion to amend, Respondent shall file a response thereto. The Court's granting of Petitioner's motion to stay shall be without prejudice to Respondent opposing Petitioner's motion to amend on any ground, including that Petitioner's newly exhausted claims are time barred and/or procedurally defaulted; and
f. If Respondent opposes Petitioner's motion to amend, Petitioner shall file his reply (if any) to Respondent's opposition within twenty (20) days of service of the opposition.
Source: Leagle
