Webb v. Grounds

Filing 7

ORDER GRANTING 6 Petitioner's Motion to Amend the Petition to Withdraw Unexhausted Claims; ORDER GRANTING 6 Petitioner's Motion for Stay and Abeyance; and ORDER DIRECTING Petitioner to File Status Reports Every Thirty (30) Days, signed by Magistrate Judge Sandra M. Snyder on 7/26/2011. (Jessen, A)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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A.D. WEBB,

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Petitioner,

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v.
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RANDY GROUNDS, Warden,
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Respondent.
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1:11-cv—00331–SMS-HC
ORDER GRANTING PETITIONER’S
MOTION TO AMEND THE PETITION TO
WITHDRAW UNEXHAUSTED CLAIMS
(DOC. 6)
ORDER GRANTING PETITIONER’S
MOTION FOR STAY AND ABEYANCE
(DOC. 6)
ORDER DIRECTING PETITIONER TO
FILE STATUS REPORTS EVERY THIRTY
(30) DAYS

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Petitioner is a state prisoner proceeding pro se and in

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forma pauperis with a petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254.

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Petitioner has consented to the jurisdiction of the United States

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Magistrate Judge to conduct all further proceedings in the case,

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including the entry of final judgment, by manifesting consent in

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a signed writing filed by Petitioner on March 18, 2011 (doc. 5).

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Pending before the Court is Petitioner’s motion to withdraw

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unexhausted claims and to stay the proceedings on the fully

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exhausted claims pending exhaustion of state court remedies,

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which was filed on March 18, 2011.

Pursuant to 28 U.S.C. § 636(c)(1),

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I.

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Although Petitioner’s first three claims relating to the

Motion to Withdraw Unexhausted Claims

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evidence supporting his conviction appear to be exhausted,

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Petitioner admitted that his fourth and fifth claims concerning

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the allegedly ineffective assistance of trial counsel and his

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“Three Strikes” sentence were unexhausted.

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Court’s order of March 4, 2011, Petitioner moved in accordance

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with the Court’s order to withdraw the unexhausted claims and to

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stay the proceedings on the fully exhausted claims pending

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In response to the

exhaustion of state court remedies.
Accordingly, Petitioner’s motion to amend the petition to
withdraw the unexhausted claims will be granted.

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II.

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Petitioner moves to stay the petition pursuant to Kelly v.

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Motion for Stay of the Proceedings

Small, 315 F.3d 1063 (9th Cir. 2003).
A district court has discretion to stay a petition which it

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may validly consider on the merits.

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269, 276 (2005);

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2009).

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Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003).

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F.3d 1133, 1138-41 (9th Cir. 2009).

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Rhines v. Weber, 544 U.S.

King v. Ryan, 564 F.3d 1133, 1138-39 (9th Cir.

A petition may be stayed either under Rhines, or under
King v. Ryan, 564

In the three-step procedure under Kelly, 1) the petitioner

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files an amended petition deleting the unexhausted claims; 2) the

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district court stays and holds in abeyance the fully exhausted

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petition; and 3) the petitioner later amends the petition to

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include the newly exhausted claims.

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1133, 1135 (9th Cir. 2009).

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allowed if the additional claims are timely.

See, King v. Ryan, 564 F.3d

However, the amendment is only

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Id. at 1140-41.

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In this case, Petitioner meets the qualifications for a

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Kelly stay.

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have been withdrawn.

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exhausted, and the first step of the Kelly procedure is complete.

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The petition contained two unexhausted claims which
Thus, the instant petition is already

Therefore, the Court will stay the proceedings according to

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the second step of the Kelly procedure.

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instructed to file status reports of his progress through the

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state courts.

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opinion, provided the opinion is a denial of relief, Petitioner

Petitioner will be

Once the California Supreme Court renders its

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must file an amended petition including all of his exhausted

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claims.

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untimely if they do not comport with the statute of limitations

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set forth in 28 U.S.C. § 2244(d).

He is forewarned that claims may be precluded as

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III.

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Accordingly, it is ORDERED that:

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1)

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Disposition

Petitioner’s motion to amend the petition to withdraw

the unexhausted claims is GRANTED; and

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2) Petitioner’s motion for stay of the proceedings is

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GRANTED pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir.

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2003); and

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3) The proceedings are STAYED pending exhaustion of state
remedies; and

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4) Petitioner is DIRECTED to file a status report of his

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progress in the state courts within thirty (30) days, and then

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every thirty (30) days thereafter until exhaustion is complete;

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and

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5) Within thirty (30) days after the final order of the
California Supreme Court, Petitioner MUST FILE an amended
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petition in this Court including all exhausted claims.

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Petitioner is forewarned that failure to comply with this
Order will result in the Court’s vacating the stay.

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IT IS SO ORDERED.

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Dated:
icido3

July 26, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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