(HC) Bisel v. Fisher

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 GREGORY EUGENE BISEL, No. 1:17-cv-00013-DAD-SKO (HC) 11 Petitioner, 12 v. ORDER DECLINING FINDINGS AND RECOMMENDATIONS 13 RAY FISHER JR. and SCOTT KERNAN, (Doc. Nos. 42, 49) 14 Respondents.

15 16 Petitioner Gregory Eugene Bisel is a state prisoner proceeding pro se and in forma 17 pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was 18 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 19 Rule 302. 20 On December 19, 2019, respondents moved to dismiss claims 1, 2, 5 and 6 of “Petitioner’s 21 First Amended Petition” (hereinafter “First Amended Petition”) (Doc. No. 31) as time-barred and 22 claim 4 as both unexhausted and time-barred. (Doc. Nos. 42, 43.) On February 6, 2020, 23 petitioner filed his opposition to that motion. (Doc. No. 48.) Respondents did not file a reply. 24 On February 28, 2020 the assigned magistrate judge issued findings and recommendation 25 recommending that claims 1, 5 and 6 of petitioner’s First Amended Petition be dismissed as time- 26 barred, but that respondents’ motion to dismiss be denied as to petitioner’s claims 2 and 4. (Doc. 27 No. 49.) Both petitioner and respondents have filed objections to the pending findings and 28 recommendations. (Doc. Nos. 51, 52.) 1 Respondents’ principle objection is that in their view the assigned magistrate judge lacked 2 the authority to grant petitioner’s request for a stay and abeyance of this action pursuant to Rhines 3 v. Weber, 544 U.S. 269 (2005) on January 30, 2017. (Doc. No. 51 at 5–7.) Specifically, 4 respondents argue that a Rhines stay is a generally a dispositive matter which was dispositive here 5 as to petitioner’s claim 4 of the First Amended Petition (Doc. No. 31), and thus the magistrate 6 judge exceeded the jurisdictional limits of 28 U.S.C. § 636, in the absence of consent to 7 magistrate judge jurisdiction. (Doc. No. 51 at 5.) Respondents also argue that petitioner’s motion 8 for stay and abeyance should not have been granted on its merits because he did not establish 9 good cause for the granting of the stay. (Id. at 7–9.) 10 Petitioner objects to the pending findings and recommendations to the extent they 11 recommend dismissal of any of his claims on the grounds that the court had granted him an 12 extension of the previously-granted Rhines stay on September 10, 2018, which permitted him to 13 exhaust his additional claims in state court and that he did in fact return to this court within the 14 time permitted by that order. (Doc. No. 52 at 1–2.) Petitioner also addresses in his objections 15 why good cause supported the issuance of the stay orders and offers various corrections to the 16 factual findings included in the pending findings and recommendations. (Id. at 2–7.) 17 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 18 de novo review of the case. Having carefully reviewed the entire file, including both parties’ 19 objections, the undersigned declines to adopt the findings and recommendations. For the reasons 20 explained below, respondents’ pending motion to dismiss will be denied and petitioner will be 21 permitted to proceed on his claims 1, 2, 4, 5 and 6, as well as on his claim 3 which respondents 22 did not move to dismiss. 23 DISCUSSION 24 A. The Timeliness of Claims 1, 2, 4, 5, and 6 25 In the pending motion to dismiss, respondents seek dismissal of claims 1, 2, 4, 5, and 6 of 26 the First Amended Petition as untimely. (Doc. No. 42.) It appears that respondents’ arguments 27 regarding the timeliness of petitioner’s claims, as raised in the motion to dismiss and discussed in 28 the pending findings and recommendations, are based on a misunderstanding that caused 1 petitioner’s first, timely-lodged amended petition to be overlooked. Petitioner’s claims 1, 2, 4, 5, 2 and 6 were all timely-filed either before the running of the statute of limitations or were timely- 3 filed pursuant to the assigned magistrate’s orders granting a stay and abeyance pursuant to Rhines 4 v. Weber, 544 U.S. 269 (2005) on either January 30, 2017 and September 10, 2018. (Doc. Nos. 5 13, 24.) The relevant procedural history is as follows. 6 1. Timeliness of the Lodged Petition 7 On December 16, 2016, petitioner filed a petition for writ of habeas corpus asserting two 8 fully-exhausted claims (“Original Petition”). (Doc. No. 1.) With his petition, petitioner also filed 9 a motion for stay and abeyance of these federal habeas proceedings under Rhines so that he could 10 first exhaust additional, unexhausted claims in state court.1 (Doc. Nos. 1, 2.) After directing 11 petitioner to file a supplemental statement setting forth each unexhausted claim he wished to 12 return to state court to exhaust (“Petition Supplement”) (Doc. No. 10 at 3) and petitioner timely 13 doing so by setting forth his five additional claims (Doc. No. 12.), on January 30, 2017, the 14 assigned magistrate judge granted petitioner’s motion for a stay and abeyance pursuant to Rhines. 15 That order permitted petitioner to seek to exhaust these five unexhausted claims in state court; 16 required him to file status reports with this court every ninety days; and ordered the petitioner to 17 file a motion to lift the stay and an amended federal habeas petition asserting all of his exhausted 18 claims within thirty days after the California Supreme Court issued a final order resolving his 19 unexhausted claims. (Doc. No. 13 at 3–4.) Thereafter, petitioner sought review of his 20 ///// 21 ///// 22 ///// 23 ///// 24 ///// 25

1 Pursuant to the mailbox rule, a pro se habeas petitioner’s pleading is considered filed based on 26 the date it is submitted to prison authorities for mailing, as opposed to the date of its receipt by 27 the clerk of the court. See Houston v. Lack, 487 U.S. 266, 274–75 (1988); Rule 3(d) of the Rules Governing Section 2254 Cases. All of petitioner’s filing dates referred to in this order will reflect 28 the date he submitted a document to prison officials for mailing. 1 unexhausted claims in the California courts and filed regular status reports with this court 2 advising it of his progress in that regard.2 (Doc. Nos. 14, 15, 16, 17, 18.) 3 Petitioner advises that on April 13, 2018, he mailed his amended federal petition (Doc. 19 4 at 1), which the undersign notes was lodged on the court’s docket under the title, Lodged Petition 5 (“Lodged Petition”) (Doc. No. 20) on April 24, 2018. The Lodged Petition was submitted within 6 the thirty-days of the California Supreme Court’s issuance of its March 14, 2018 final order 7 ruling on petitioner’s unexhausted claims (Doc. No. 42 at 6) and thus was filed in compliance 8 with the directions given to petitioner by the order granting the Rhines stay. (Doc. No. 13 at 3–4.) 9 Notably, the Lodged Petition was also submitted before the running of the applicable statute of 10 limitations. (Doc. No. 49 at 6) (“[T]he limitations period expired on March 7, 2019 . . ..”) 11 Petitioner did not file a motion to lift the stay with his Lodged Petition, as required by the 12 January 30, 2017 order granting the Rhines stay, but instead filed a document titled “Motion for 13 Leave to Accept Habeas Corpus Petition, or Grant Enlargement of Time; Permission to Exceed 14 Page Limit” dated April 19, 2018. (Doc. 19 at 1–2.) In that filing, petitioner described that on 15 April 15, 2018, he had discovered that several pages and certain exhibits were mistakenly not 16 included by him in the Lodged Petition he had mailed to this court on April 13, 2018 and that he 17 thereafter mailed the missing pages and exhibits to the court.3 (Id. at 1–2.) Petitioner’s filing

18 2 Petitioner’s complete filing history in the California state court system is outlined fully in the 19 pending findings and recommendations. (Doc. No. 49 at 5–7.) The undersigned adopts those findings in their entirety. However, the undersigned notes petitioner’s objection to the 20 characterization by the findings and recommendations of the total number of petitions he lodged with the state appellate court, stating that the second petition he submitted to the state court was 21 only an amended petition. (Doc. No. 48 at 1–2.) While this has no bearing on the analysis set forth in this order, to address petitioner’s objection, the undersigned notes that it does appear 22 petitioner intended for the “second” petition he submitted to the state appellate court on 23 November 14, 2017 (Doc. No. to 43–9) to replace his September 15, 2017 petition (Doc. No. 43- 7). By that time, however, the California Court of Appeal had denied the September 15, 2017 24 petition on November 13, 2017. (Doc. No. 43-8.) Petitioner represents that he did not receive an order denying the earlier petition by mail until November 16, 2017 (Doc. No. 18 at 1), after his 25 amended petition had itself been mailed to the state appellate court. This appears to have caused the California Court of Appeal to treat it as a second petition and to issue a second denial order. 26

27 3 The court notes that these missing pages do not appear to have been docketed, and thus the undersigned is unable to confirm petitioner’s assertions of what those pages contained but does 28 note that claim 3 of the Lodged Petition (Doc. No. 20) appears to be missing therefrom. 1 dated April 19, 2018, was a motion for leave to incorporate those missing pages into his amended 2 petition or, in the alternative, for an extra thirty days to reassemble and refile his amended federal 3 habeas petition. (Doc. 19.) Although not described as a motion to lift the stay, petitioner’s 4 motion dated April 19, 2018, clearly relayed to this court that the California Supreme Court had 5 issued a final order ruling on his previously unexhausted claims and that he had submitted his 6 amended federal petition for this court’s review. (Id. at 1.) 7 It appears the magistrate judge then misconstrued petitioner’s somewhat confusing filings 8 with this court, not realizing that petitioner had just advised the court that his exhaustion petition 9 had been denied by the California Supreme Court and that he was ready to now proceed in federal 10 court with his exhausted claims for federal habeas relief. The undersigned reaches this 11 conclusion because, on April 25, 2018, the assigned magistrate denied petitioner’s motion for 12 leave to incorporate the missing pages into his amended federal petition, stating: 13 Because Petitioner will file an amended petition and the Court will screen that petition once the stay is lifted, the Court will DENY 14 Petitioner’s motion to supplement his petition at this time. Petitioner can file a complete amended petition, with all claims he 15 would like the Court to review, once his state court claims are resolved.4 16 17 (Doc. No. 21 at 2) (emphasis added). On May 13, 2018, petitioner filed a subsequent status 18 report again informing this court that the California Supreme Court had denied his habeas corpus 19 exhaustion petition and describing the issues he had encountered in filing his amended federal 20 petition with this court on April 13, 2018. (Doc. 22 at 1.) 21 Thus, the Lodged Petition was timely-submitted pursuant to the January 30, 2017 order 22 granting petitioner a Rhines stay (Doc. No. 13); however, because of the misunderstanding with 23 respect to the import of petitioner’s April 19, 2018 motion (Doc. No. 19), the Lodged Petition 24 was simply overlooked by the court. “When implemented, the Rhines exception eliminates 25 entirely any limitations issue with regard to the originally unexhausted claims, as the claims 26 4 The magistrate judge’s order in this regard thus appears to reflect the misunderstanding. That is 27 because when that order was issued, all of petitioner’s previously unexhausted claims had been ruled upon by the California Supreme Court and petitioner had already properly lodged an 28 amended federal petition, as indicated in his motion. (See Doc. 19 at 1–2.) 1 remain pending in federal court throughout.” King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009). 2 Thus, even the claims first presented in the Lodged Petition would be timely filed in light of the 3 stay pursuant to Rhines. Additionally, irrespective of the Rhines stay, the Lodged Petition (Doc. 4 No. 20) at issue here was filed prior to the expiration of the applicable one–year statute of 5 limitations, which did not run until March 7, 2019. Thus, the new claims presented in the Lodged 6 Petition are not untimely and are not subject to dismissal as time-barred. (Doc. No. 49 at 6.) 7 2. Timeliness of the First Amended Petition 8 The operative pleading, the First Amended Petition, is comprised of four claims that were 9 either part of the Original Petition filed December 16, 2016 (Doc. No. 1), the Petition Supplement 10 filed January 24, 2017 (Doc. No. 10), or the Lodged Petition submitted for filing on April 13, 11 2018 (Doc. No. 20), claims 2–5,5 each of which was filed prior to the expiration of the applicable 12 statute of limitations. The First Amended Petition also contained two newly-asserted claims, 13 claims 1 and 6. 14 a. Timeliness of Claims 2, 4, and 5 15 The First Amended Petition contains claims asserting that: (1) the state trial court violated 16 petitioner’s right to a speedy trial; (2) petitioner’s trial counsel rendered ineffective assistance by 17 failing to obtain a transcript of the taped recorded interview of one his alleged victims belatedly 18 produced by the prosecution during his trial; (3) the belated disclosure by the prosecution of the 19 tape recorded interview violated both state law and his constitutional rights under the Sixth and 20 Fourteenth Amendment; (4) petitioner’s trial counsel rendered ineffective assistance by failing to 21 communicate the terms of a plea offer to petitioner; (5) petitioner’s trial counsel rendered 22 ineffective assistance by failing to challenge certain jury instructions given at his trial; 23 (6) petitioner’s appellate counsel rendered ineffective assistance by withholding the record from 24 petitioner for two and a half years and never sending petitioner the recording of the belatedly- 25 produced tape recorded interview of one of petitioner’s alleged victims. (Doc. No. 31.) 26

27 5 As noted above, respondents did not move to dismiss claim 3 of petitioner’s First Amended Petition and also correctly concede that claim 3 corresponds to claim 1 of petitioner’s Original 28 Petition. (Doc. Nos. 1 at; 31 at 29–40; 42 at 1; 49 at 4.) 1 Claim 2 of petitioner’s First Amended Petition corresponds to claim 1.e of his Lodged 2 Petition. (Doc. Nos. 20 at; 31 at 21–28.) As correctly outlined in the pending findings and 3 recommendations, claim 4 of petitioner’s First Amended Petition corresponds to claim 2 of his 4 Petition Supplement. (Doc. Nos. 12 at; 31 at 41–43; 49 at 4–5.) Claim 5 of the First Amended 5 Petition corresponds to Claim 1.c of the Lodged Petition. (Doc. Nos. 20 at; 31 at 44–49.) 6 Therefore, the court finds that petitioner’s claims 2, 4, and 5 as asserted in petitioner’s 7 First Amended Petition were timely filed within the limitations period and are not subject to 8 dismissal as time-barred.6 9 b. Timeliness of the Newly-Asserted Claims 10 For the reasons explained below, the court also concludes that petitioner’s two new 11 federal claims for relief contained in his First Amended Petition, as claims 1 and 6, are also not 12 time-barred. Claim 1 was timely because petitioner’s First Amended Petition was timely filed in 13 compliance with the magistrate judge’s September 10, 2018 order granting a stay and claim 6 is 14 timely because it relates back to claims asserted by petitioner in his timely-filed Lodged Petition. 15 (Doc. No. 24 at 1.) 16 i. Claim 1 17 On August 12, 2018, petitioner filed a motion seeking to extend the Rhines stay, so that he 18 might exhaust another newly-discovered claim before the California Supreme Court, along with a 19 status report describing how he had just acquired a transcript within the previous month which 20 gave rise to that new claim. (Doc. No. 23.) On September 10, 2018, the assigned magistrate 21 granted the motion, extending the stay “to include additional unexhausted claims Petitioner may 22 present to the state court.” (Doc. No. 24 at 1.) Petitioner was again instructed to file a motion 23 with this court to lift the stay and an amended habeas petition setting forth all exhausted claims 24 within thirty days after the California Supreme Court had issued a final order addressing any 25 unexhausted claims. (Id. at 2.) Thereafter, petitioner filed a second petition with the California 26 Supreme Court (Doc. No. 42 at 2) and continued to file status reports with this court describing 27 6 The undersigned notes that respondents have presented no challenge to the substance of any of 28 petitioner’s claims. 1 his progress on his second exhaustion petition before the California Supreme Court. (Doc. Nos. 2 25, 26, 27.) 3 On June 12, 2019, petitioner’s second state habeas exhaustion petition was denied by the 4 California Supreme Court as successive. (Doc. No. 42 at 2.) Within thirty days, on July 12, 5 2019, petitioner timely-lodged an amended federal petition with this court along with a motion to 6 lift the Rhines stay. (Doc. Nos. 29, 30.) On September 20, 2019, the assigned magistrate lifted 7 the stay and directed the Clerk of Court to file the July 12, 2019 amended petition on the docket, 8 which became the First Amended Petition. (Doc. Nos. 32 at 2.) 9 Petitioner is thus correct in his objections that the Rhines stay granted on September 10, 10 2018 permitted him to exhaust his additional claims in state court and claim 1 is therefore not 11 subject to dismissal on timeliness grounds because he did return to this court within the time 12 permitted by that order. (Doc. No. 52 at 1–2.) 13 ii. Claim 6 14 The court also finds that petitioner’s claim 6 is not time-barred and should be allowed to 15 proceed because it relates back to a claim asserted by petitioner in his timely filed Lodged 16 Petition (Doc. No. 20). 17 As the pending findings and recommendations explained, “[n]ewly exhausted claims in a 18 subsequent petition only relate back to the original petition if the new claims are tied to claims 19 that were exhausted at the time of filing by “a common core of operative facts.” (Doc. No. 49 at 20 4) (citing Fed. R. Civ. P. 15(c); King, 564 F.3d at 1140–42 (applying the relation back principles 21 discussed in Mayle v. Felix, 545 U.S. 644, 657 (2005)). As also noted in the pending findings and 22 recommendations, “[n]ew grounds do not relate back if they differ in both ‘time and type’ from 23 those in the original petition.” (Id.) (citing Mayle, 545 U.S. at 657). 24 Here the court finds that petitioner’s claim 6 asserted in his First Amended Petition is 25 similar in time and in type and shares a common core of operative facts with his claims 1.e and 6 26 ///// 27 ///// 28 ///// 1 of the Lodged Petition. (Doc. Nos. 20 at 38–44, 55; 31 at 14.) In claim 67 of petitioner’s First 2 Amended Petition petitioner asserts that he received “ineffective assistance of appellate counsel 3 for withholding the appellate record for two and one-half years, and for failing to send petitioner 4 the audiotaped recording” of the police interview of one of petitioner’s alleged victims. (Doc. 5 No. 49 at 4.) Petitioner brought many claims related to this recording and its belated production 6 by the prosecution during his trial, in each alleging ineffective assistance of counsel by his trial 7 counsel, including claim 1.e of the Lodged Petition. (Doc. No. 20 at 38–44; see also claim 1 of 8 the Original Petition (Doc. No. 1 at 1, 58–70.)) In claim 6 of the Lodged Petition, petitioner 9 asserted his newly exhausted claim of ineffective assistance of appellate counsel for “issues 10 addressed in [claims] 1b, 1c, 1c, and 1e . . ..” (Doc. No. 20 at 55.) The court finds that 11 petitioner’s claim that his appellate counsel provided ineffective assistance by failing to forward 12 him a copy of the recorded interview transcript was fully subsumed within his broader and 13 timely-filed claims asserted in the Lodged Petition. Having found that claim 6 relates back to the 14 Lodged Petition, the court also concludes that the claim was presented to this court in a timely 15 fashion. 16 Because petitioners’ claims 1, 2, 4, 5, and 6 were timely filed for the reasons outlined 17 above, respondents’ motion to dismiss those claims as untimely will be denied. 18 B. Whether Claim 4 Was Properly Exhausted 19 Respondents also seek dismissal of petitioner’s claim 4 by asserting it was unexhausted. 20 (Doc. No. 42.) In their motion, respondents argue that claim 4 is unexhausted because the 21 assigned magistrate judge lacked jurisdiction to grant petitioner’s motion for a Rhines stay on 22 January 30, 2018 (Doc. No. 13). (Doc. No. 42 at 6–7.) Respondents’ principle argument, which 23 is repeated in their objections to the pending findings and recommendations, is that the assigned 24 magistrate’s Rhines stay issued on January 30, 2017 (Doc. No. 13) exceeded the jurisdiction 25 conferred by 28 U.S.C. § 636(b)(1)(a). (Doc. No. 51 at 5–7.) They argue the stay was issued 26

27 7 The undersigned notes it appears that some of the final pages of petitioner’s First Amended Petition where claim 6 is addressed are missing. The court therefore has relied solely on the 28 description of the claim as asserted by petitioner in his form petition. 1 without obtaining the parties’ consent to the magistrate judge’s jurisdiction and, separately, that 2 they had not been given an opportunity to object to petitioner’s motion under Federal Rules of 3 Civil Procedure Rule 72(a).8 (Id.) Respondents contend that the order granting a Rhines stay was 4 a dispositive order because it disposed of respondents’ defenses to claim 4. (Id.) In response, 5 petitioner claims that he served respondents with the various documents related to his request for 6 stay, so they were well aware of that motion prior to being served by the court. (See, e.g., Doc. 7 No. 48 at 2.) 8 Federal Rule of Civil Procedure 72(a) provides that non-dispositive pretrial matters may 9 be referred to and decided by a magistrate judge, subject to review by the assigned district judge. 10 Fed. R. Civ. P. 72(a); see also Local Rule 303(c). In contrast, dispositive matters that may not be 11 heard directly by a magistrate judge must be addressed by way of findings and recommendations. 12 See 28 U.S.C. § 636(b). 13 The Ninth Circuit has never held that the granting of Rhines stay is a dispositive order that 14 may not be issued by a magistrate judge. The Ninth Circuit has acknowledged that a denial of a 15 Rhines stay is generally considered to be a dispositive ruling, as outlined in the companion cases, 16 Mitchell v. Valenzuela, 791 F.3d 1166 (9th Cir. 2015) and Bastida v. Chappell, 791 F.3d 1155 17 (9th Cir. 2015).9 Generally in determining whether a motion is dispositive, the Ninth Circuit 18 directs courts to adopt a “functional approach that looks to the effect of the motion, in order to 19 determine whether it is properly characterized as dispositive or non-dispositive of a claim or 20 defense of a party.” Mitchell, 791 F.3d at 1168–69. The Ninth Circuit’s analysis in Mitchell and 21 Bastida focused on the impact a denial would be likely to have on a petitioner’s unexhausted 22

23 8 Respondents were not served with the First Amended Petition and directed to respond thereto until September 20, 2019 (Doc. No. 33), after the magistrate judge had granted stay and abeyance 24 pursuant to Rhines and extended that stay at the request of petitioner. (Doc. Nos. 13, 24.)

25 9 Moreover, even with respect to orders denying a stay under Rhines, which are considered generally dispositive, the Ninth Circuit has indicated that there remain cases where the order is 26 not dispositive, and thus, would be the appropriate subject of an order issued by a magistrate 27 judge. Mitchell, 791 F.3d at 1172 (“We do not, however, foreclose the possibility that [a party] could establish, in particular cases, that the denial of such a motion was not dispositive under the 28 circumstances.”) 1 claims. In both cases, the court held that a denial of a motion for stay and abeyance under Rhines 2 should be considered presumptively dispositive because “a motion to stay and abey section 2254 3 proceedings is generally (but not always) dispositive of the unexhausted claims.” Mitchell, 791 4 F.3d at 1171; see also Bastidas, 791 F.3d at 1159 (citing same). 5 Here, the January 30, 2017 order granting a stay under Rhines was not dispositive as to 6 any of petitioner’s claims nor of any of respondents’ defenses thereto.10 This is so because when 7 the Lodged Petition was submitted to this court on April 13, 2018, the statute of limitations for 8 petitioner’s filing of a federal habeas petition had not yet run and did not expire until March 7, 9 2019. (Doc. No. 49 at 6.) For the reasons explained above, the issuance of the Rhines stay had 10 no impact in this case on the determination of whether petitioner’s unexhausted claims were 11 timely asserted before this court. Thus, the magistrate judge’s order granting the Rhines stay 12 under the circumstances presented in this case was not dispositive as to any of the claims or 13 defenses. Accordingly, the court rejects the argument presented by respondents in their 14 objections to the pending findings and recommendations as to this issue.11 15 ///// 16 ///// 17 ///// 18

19 10 The undersigned notes that dicta in Mitchell and Bastida suggests that an order granting stay and abeyance under Rhines is most likely not a presumptively dispositive order. Because the 20 Ninth Circuit employs the functional approach, Mitchell, 791 F.3d at 1168–69, the dispositive nature of a motion can turn on the outcome and any “asymmetry” in this result is because of the 21 effect on the ultimate claims. Bastida, 791 F.3d at 1155 n.5–6.

22 11 The court notes that the Ninth Circuit has outlined the procedure to be employed in the event a 23 magistrate judge improperly issued a dispositive order with respect to a motion for stay and abeyance under Rhines. See Sadowski v. Grounds, 742 F. App’x 311, 312 (9th Cir. 2018) 24 (Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36-3(b).) Under that procedure, the district judge is to construe the order granting stay and 25 abeyance under Rhines as findings and recommendations. As a part of the court’s de novo review of the pending findings and recommendations, in accordance with the provisions of 28 U.S.C. 26 § 636(b)(1)(C), and having carefully reviewed the entire file, the court finds the magistrate 27 judge’s January 30, 2017 order granting stay and abeyance under Rhines to be supported by the record and by proper analysis. Therefore, even if construed as findings and recommendations, the 28 undersigned would adopt them in full. 1 CONCLUSION 2 Accordingly, 3 1. The court declines to adopt the findings and recommendations issued February 28, 4 2020 (Doc. No. 49); 5 2. Respondents’ motion to dismiss (Doc. No. 42) is denied; 6 3. Respondents are directed to file a response to petitioner’s claims 1, 2, 3, 4, 5, and 6 7 within sixty (60) days; 8 4. Petitioner may file a traverse to the response within thirty (30) days of the date of 9 service of respondents’ response; and 10 5. This action is referred back to the magistrate judge for proceedings consistent with 11 this order. 12 | IT IS SO ORDERED. a - 8 Dated: _ May 6, 2021 al, A “7 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12