(HC) Wheat v. Gipson

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DARNELL DEVON WHEAT, Case No. 1:25-cv-0624 JLT SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 13 v. PETITIONER’S MOTION FOR STAY AND ABEYANCE 14 CONNIE GIPSON, et al., (Docs. 2, 10) 15 Respondents. ORDER DIRECTING PETITIONER TO 16 REQUEST DISMISSAL OF UNEXHAUSTED CLAIMS OR DISMISSAL OF HIS PETITION 17 WITHIN 21 DAYS

18 19 Darnell Devon Wheat is a state prisoner proceeding pro se and in forma pauperis with a 20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed a motion for stay 21 and abeyance pending exhaustion of state remedies on two claims. (Doc. 2.) Respondent 22 opposed the motion to stay. (Doc. 6.) 23 The assigned magistrate judge found “Petitioner does not provide any reason for a stay, 24 other than to suggest he recently discovered his claims,” which concern an undisclosed ski mask 25 in law enforcement custody and dismissal of the gang-imposed enhancement for a co-defendant. 26 (Doc. 10 at 3; see also Doc. 1.) The magistrate judge also noted that to the extent “Petitioner 27 seeks to request a discovery hearing concerning a ski mask[,]” such a motion does “not toll the 28 limitations period.” (Id., citing Ramirez v. Yates, 571 F.3d 993, 1000 (9th Cir. 2009).) The 1 magistrate judge determined that “Petitioner fails to demonstrate that the claims are potentially 2 meritorious.” (Id. at 3.) Further, the magistrate judge found Petitioner did not show good cause 3 to support the request. (Id. at 3-4.) Therefore, the magistrate judge recommended the Court deny 4 the motion for a stay. (Id. at 4.) 5 The Court served the Findings and Recommendations on all parties and notified Petitioner 6 that any objections were due within 21 days. (Doc. 10.) The Court advised the parties that the 7 “failure to file objections within the specified time may result in the waiver of rights on appeal.” 8 (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Petitioner did not file 9 objections, and the time to do so has passed. 10 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. 11 Having carefully reviewed the matter, the Court concludes the Findings and Recommendations 12 are supported by the record and proper analysis. Petitioner fails to show good cause for a stay of 13 his unexhausted claims. 14 Petitioner now has two choices to cure the inclusion of unexhausted claims in his petition: 15 (1) Petitioner may request dismissal of the unexhausted and non-cognizable claims from the 16 petition, and the petition will proceed on his claim concerning the DNA results; or (2) Petitioner 17 may request dismissal of the petition and return to state court to exhaust the additional claims for 18 relief. See Jefferson v. Budge, 419 F.3d 1013, 1016 (9th Cir. 2005); Butler v. Long, 752 F.3d 19 1177, 1191 (9th Cir. 2014). If Petitioner chooses dismissal of the petition, the dismissal would be 20 without prejudice to returning to federal court once exhaustion is complete. However, the Court 21 expresses no opinion on the effects of the statute of limitations. 22 Based upon the foregoing, the Court ORDERS: 23 1. The Findings and Recommendations issued on July 23, 2025 (Doc. 10) are 24 ADOPTED in full. 25 2. Petitioner motion for stay and abeyance of the petition for writ of habeas corpus 26 (Doc. 2) is DENIED. 27 /// 28 /// 1 3. Within 21 days of the date of service of this order, Petitioner SHALL file either: 2 (1) a request for dismissal of unexhausted claims; or (2) a request for dismissal of 3 the petition without prejudice. 4 5 IT IS SO ORDERED. 6 Dated: _ August 29, 2025 Cerin | Tower TED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28