(HC) Booker v. Lynch

Opinion

JAMES BOOKER, Case No. 2:20-cv-01894-NONE-JDP Petitioner, FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER’S MOTION TO STAY v. OBJECTIONS DUE IN THIRTY DAYS ECF No. 9 Respondent.

Petitioner James Booker, a state prisoner without counsel, filed a writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. I dismissed that petition with leave to amend on October 6, 2020 after finding that the petition appeared to contain only unexhausted claims. ECF No. 8 at 2. In a footnote, I also noted that petitioner’s claims might be time-barred. Id. at 2 n.1. My order gave petitioner thirty days to file an amended petition which addressed both issues. Id. at 2. As of this filing, petitioner has not filed an amended petition. He has, however, filed a motion to stay, ECF No. 9, which I recommend be denied without prejudice. Petitioner’s motion fails because there is no longer any petition to stay. As state above, I dismissed his initial petition with leave to amend on October 6 and before petitioner motioned for a stay under Rhines v. Weber, 544 U.S. 269 (2005). At that point, the initially filed petition was no longer operative. I will deny petitioner’s motion to stay without prejudice. If he wishes to obtain a stay under Rhines, he should file an amended petition and then resubmit a motion to stay. He is advised that a petitioner seeking a Rhines stay must show: (1) good cause for his failure to exhaust before advancing to federal court, (2) that the unexhausted claims are not “plainly meritless,” and (3) that he has not engaged in “abusive litigation tactics or intentional delay.” 544 U.S. at 277-78. He should discuss those elements in any future motion to stay he files. It is ORDERED that the Clerk of Court shall assign a district judge to rule on these findings and recommendations. I recommend that petitioner’s motion for a stay be denied. ECF No. 9. These findings and recommendations are submitted to the U.S. District Court judge presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty days of the service of the findings and recommendations, petitioner may file written objections to the findings and recommendations with the court and serve a copy on all parties. That document must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). ( 1 Sy — Dated: _ November 17, 2020 Q_——_ JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE