Cochise Bahar Lee v. G D Lewis

Filing 40

ORDER ACCEPTING IN PART REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Judge Virginia A. Phillips. IT IS ORDERED that Petitioner's motion for a stay is GRANTED IN PART AND DENIED IN PART, subject to the following terms and con ditions: 1. Petitioner shall file a habeas petition before the California Supreme Court that exhausts any unexhausted allegations within 30 days after entry of an order accepting this recommendation; 2. Petitioner shall file a status report in thi s court within 30 days after filing the petition in California Supreme Court. The status report shall notify this court of the case number assigned by the state court; and 3. Petitioner shall file a status report within 10 days after he receives a copy of the California Supreme Court's decision on his petition. (See Order for Further Details) (kl)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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COCHISE B. LEE,
Petitioner,
v.
G.D. LEWIS, Warden,
Respondent.

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NO. CV 13-7725-VAP (AGR)

ORDER ACCEPTING IN PART
REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed Petitioner’s motion for

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a Kelly or Rhines stay (Dkt. No. 25); the previously-assigned Magistrate Judge’s

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July 14, 2015 Order (Dkt. No. 30) denying the stay motion; the newly-assigned

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Magistrate Judge’s October 29, 2015 Order (Dkt. No. 35) construing the denial

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order as a Report And Recommendation in light of two intervening Ninth Circuit

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rulings that restrict the authority of Magistrate Judges to rule on stay motions; and

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Petitioner’s November 16, 2015 Objections to the Report. (Dkt. No. 36.)

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The Court accepts in part the findings and recommendations of the

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Magistrate Judge. The Court agrees with the Magistrate Judge that Petitioner

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fails to show the required “good cause” for a Rhines stay. Rhines v. Weber, 544

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U.S. 269, 277 (2005).

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However, the Court concludes that a Kelly stay is available. Kelly v. Small,

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315 F.3d 1063 (9th Cir. 2002). “Rhines applies to stays of mixed petitions,

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whereas the three-step procedure [in Kelly] applies to stays of fully exhausted

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petitions.” King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009) (emphasis in

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original) (citation omitted). Petitioner does not seek to exhaust any new claims

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but instead wishes to exhaust additional evidentiary support, in the form of

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affidavits, for Ground One. Ordinarily, a petitioner seeking a Kelly stay has a

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mixed petition and must initially file a fully exhausted “placeholder” petition

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omitting any unexhausted claims. Because the current petition in this case is fully

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exhausted, the first step is unnecessary.
IT IS ORDERED that Petitioner's motion for a stay is GRANTED IN PART
AND DENIED IN PART, subject to the following terms and conditions:
1.

Petitioner shall file a habeas petition before the California Supreme

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Court that exhausts any unexhausted allegations within 30 days after

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entry of an order accepting this recommendation;

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2.

Petitioner shall file a status report in this court within 30 days after

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filing the petition in California Supreme Court. The status report shall

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notify this court of the case number assigned by the state court; and

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3.

Petitioner shall file a status report within 10 days after he receives a
copy of the California Supreme Court's decision on his petition.

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DATED: March 31, 2016________

___________________________
VIRGINIA A. PHILLIPS
United States District Judge

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