Cummings v. Andrewjeski

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 CLAYTON EVAN CUMMINGS, CASE NO. 2:23-cv-1314-JNW-GJL 11 Petitioner, v. ORDER GRANTING MOTION TO 12 STAY THE CASE MELISSA ANDREWJESKI, 13 Respondent. 14

15 The District Court has referred this action to United States Magistrate Judge Grady J. 16 Leupold. Petitioner Clayton Evan Cummings filed a federal habeas Petition pursuant to 28 17 U.S.C. § 2254, seeking relief from a state court conviction. Dkt. 6. Currently before the Court is 18 Petitioner’s Motion to Stay these proceedings. Dkt. 9. 19 On September 13, 2023, the Court entered an Order directing service of the habeas 20 Petition, but also directing Respondent to respond only to Petitioner’s Motion to Stay. Dkt. 10. 21 Respondent filed a Response on September 20, 2023, indicating Respondent does not oppose a 22 stay for the limited purpose of allowing Petitioner to attempt to exhaust his state court remedies. 23 Dkt. 12. 24 1 District courts may use a “stay-and-abeyance” procedure while a petitioner exhausts his 2 claims in state court. Rhines v. Weber, 544 U.S. 269, 275–77 (2005); Calderon v. United States 3 District Court (Taylor), 134 F.3d 981, 988 (9th Cir. 1998). Here, where Petitioner’s relevant 4 judgment and sentence remain pending in the state courts, the Court finds it would be a proper

5 exercise of discretion for the Court to stay the federal proceedings so that Petitioner may attempt 6 to exhaust his federal habeas claims in state court. Thus, after review of the relevant record, the 7 Court finds a stay is appropriate and GRANTS Petitioner’s Motion to Stay. Dkt. 9. The case is 8 STAYED. Further, as the case is stayed so that Petitioner may attempt to exhaust his claims in 9 state court, the Court DENIES without prejudice and as premature Petitioner’s Motion for 10 Habeas Corpus Relief. Dkt. 8. 11 Petitioner is directed to file a report every ninety (90) days informing the Court of the 12 status of Petitioner’s state court proceedings. The first status report is due on or before 13 December 29, 2023, and shall include the state court cause number(s). If the state court 14 dismisses or resolves Petitioner’s state court proceedings, Petitioner is directed to inform the

15 Court and file a motion to lift the stay within 30 days of the state court taking action. 16 Respondent’s answer shall be filed 45 days after the stay is lifted. 17 Dated this 26th day of September, 2023. 18 A 19 20 Grady J. Leupold United States Magistrate Judge 21 22 23 24