(HC) Jones v. Sullivan

Opinion

CORNELIUS L. JONES, No. 2:19-cv-1160 WBS DB P Petitioner, v. ORDER Respondent. Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2014 convictions for attempted murder, assault with a deadly weapon, and assault likely to cause great bodily injury. Presently before the court is petitioner’s renewed motion for stay. (ECF No. 13.) I. Motion for Stay Petitioner initiated this action by filing the original petition on June 24, 2019. (ECF No. 1.) After filing the original petition, petitioner filed a motion to amend along with a proposed amended petition. (ECF Nos. 6, 7.) The court granted the motion to amend and determined it would screen the petition by separate order. (ECF No. 12.) Thereafter, petitioner filed a motion seeking a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005). The court found that because the amended petition was fully exhausted, it could not grant a stay pursuant to Rhines, but that a stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), may be appropriate. However, the court declined to impose a stay pursuant to Kelly without input from petitioner. Thus, the motion was denied without prejudice and petitioner was directed move for a stay pursuant to Kelly or amend the petition and seek a Rhines stay. Petitioner has now filed a motion seeking a stay of this action pursuant to Kelly. (ECF No. 13.) The court has determined that it is necessary to hear from respondent before the court can rule on the motion for stay. I. Conclusion Accordingly, IT IS HEREBY ORDERED that: 1. Respondent is directed to file a response to petitioner’s motion for stay (ECF No. 13) within thirty days from the date of this order. Respondent shall not file a response to the petition at this time. 2. The Clerk of the Court is directed to serve a copy of this order, a copy of petitioner’s motion for stay (ECF No. 13), the form Consent to Proceed Before a United States Magistrate Judge, and a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Tami Krenzin, Supervising Deputy Attorney General. Dated: January 21, 2020 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE DB:12 DB: 1/Orders/Prisoner/Habeas/jone 1 160.stay.resp