Ibarra v. Hedgpeth

Filing 25

ORDER Vacating FINDINGS AND RECOMMENDATION Issued March 3, 2011 And Granting Petitioner's Request To Stay Petition Pursuant And Setting Briefing Schedule (Doc. [24), signed by Magistrate Judge Dennis L. Beck on 6/15/2011. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JOHNNY LUGO IBARRA,

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1:10-cv-1809-LJO-DLB (HC)

Petitioner,

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ORDER VACATING FINDINGS AND
RECOMMENDATION ISSUED MARCH 3,
2011 AND GRANTING PETITIONER’S
REQUEST TO STAY PETITION PURSUANT
AND SETTING BRIEFING SCHEDULE

v.

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ANTHONY HEDGPETH,
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[Doc. 24]
Respondent.

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/

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254.
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On March 3, 2011, the undersigned issued Findings and Recommendation that
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Respondent’s motion to dismiss the instant petition as a mixed petition containing both
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exhausted and unexhausted claims be granted, unless Petitioner elects to dismiss the unexhausted
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claims.
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On April 11, 2011, Petitioner filed a motion to stay and hold the petition in abeyance
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while he returns to state court to exhausted the unexhausted claims.
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On May 3, 2011, the Court advised Petitioner that he had not made a sufficient showing
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to warrant a stay under Rhines v. Weber, 544 U.S. 269 (2005), but the Court could hold the
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petition in abeyance under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) if Petitioner so desired.
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On June 6, 2011, Petitioner filed a response to the Court’s May 3, 2011, order requesting
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that the Court hold the petition in abeyance pursuant to Kelly.
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It is HEREBY ORDERED that:

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1.

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Pursuant to the Court’s May 3, 2011 order and Petitioner’s response thereto, the
Findings and Recommendation issued March 3, 2011 are VACATED;

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Petitioner’S motion to stay is GRANTED and the unexhausted claims presented

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as Claims One through Nine in the original petition are stricken without prejudice

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and this action is administratively stayed pursuant to King;

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3.

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of service of this order;
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Petitioner is DIRECTED to file a status report within thirty (30) days of the date

Petitioner is DIRECTED to file a new status report every thirty (30) days after
filing his initial status report;

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Petitioner is GRANTED thirty (30) days time following the final order of the state

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courts in which to advise this Court of the finality of the state proceedings and file

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an amended petition; and

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6.

Failure to comply with this order will result in the Court vacating the stay and
proceeding with the action.

IT IS SO ORDERED.
Dated:

June 15, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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