Whittier Em v. Warden

• Court: District Court, C.D. California
• Decided: November 3, 2022
• Docket: 2:21-cv-04188
• Status: Unknown

Opinion

Case 2:21-cv-04188-CAS-DFM Document 37 Filed 11/03/22 Page 1 of 3 Page ID #:332

JS-6

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

WHITTIER EM, No. CV 21-04188-CAS (DFM)

Petitioner, Order Accepting Report and Recommendation of v. United States Magistrate Judge

GEORGE GASCON,

Respondent.

Under 28 U.S.C. § 636, the Court has reviewed the First Amended Petition, Motion for Stay, the other records on file herein, and the Report and Recommendation of the United States Magistrate Judge. No objections were filed. The Court accepts the report, findings, and recommendations of the Magistrate Judge. IT IS THEREFORE ORDERED that (1) Petitioner’s Motion for Stay under Rhines v. Weber, 544 U.S. 408 (2005), is DENIED; and (2) Petitioner’s Motion for Stay under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), is GRANTED on the following conditions: Case 2:21-cv-04188-CAS-DFM Document 37 Filed 11/03/22 Page 2 of 3 Page ID #:333

A. The Court will dismiss the unexhausted claims (Grounds One and Three through Five) and stay the remaining claim (Ground Two). B. Petitioner shall present his unexhausted claims in a petition for writ of habeas corpus that shall be filed in the California Supreme Court within thirty (30) days of the service date of this Order. C. Forthwith upon the filing of his California Supreme Court habeas petition, Petitioner shall lodge a conformed copy of the same with this Court. D. Assuming Petitioner does not obtain habeas relief from the California Supreme Court, the Petition shall be held in abeyance until thirty (30) days after the California Supreme Court issues its order denying Petitioner’s habeas petition. Within that period of time, Petitioner shall serve and file a motion to amend his Petition to add his newly exhausted claims. The motion to amend shall be made in strict compliance with Local Rules 15-1 and 15-2. The motion to amend must be accompanied by a proposed Second Amended Petition that alleges only the currently exhausted claim as well as the newly exhausted claims. The proposed Second Amended Petition must be complete in and of itself, and must not incorporate by reference any other pleading. E. Within thirty (30) days of service of Petitioner’s motion to amend, Respondent shall file a response thereto. The Court’s granting of Petitioner’s motion to stay shall be without prejudice to Respondent opposing Petitioner’s motion to amend on any ground, including that Petitioner’s 2 Case 2:21-cv-04188-CAS-DFM Document 37 Filed 11/03/22 Page3of3 Page ID #:334

newly exhausted claims are time barred and/or procedurally defaulted. F. If Respondent opposes Petitioner’s motion to amend, Petitioner shall file his reply Gf any) to Respondent’s opposition within twenty (20) days of service of the opposition. G. The Clerk is directed to administratively close the action (JS- 6). The closing order removes the action from the Court’s active docket for record-keeping purposes. It does not affect the merits of Petitioner’s claims.

Date: November 3, 2022 ae as brgde CHRISTINA A. SNYDER United States District Judge