Cornwell v. Ylst

Filing 29

ORDER signed by Judge John A. Mendez on 7/16/09 ORDERING the Findings and Recommendations 22 are ADOPTED in their entirety; the stay of these federal proceedings is now formally ordered; petitioner's Motion for Stay and for Clarification 28 is DENIED AS MOOT. (Carlos, K)

1 2 3 4 5 6 7 8 9 10 11 GLEN CORNWELL, JR. Petitioner, 12 vs. 13 14 ROBERT L. AYERS, JR. Respondent. 15 ___________________________________/ 16 On March 26, 2007, the assigned Magistrate Judge issued an Order and Findings ORDER DEATH PENALTY CASE No. CIV-S-06-0705 JAM GGH P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

17 and Recommendations concerning a stay in this death penalty action. The Magistrate Judge found 18 that petitioner was bringing some unexhausted claims in a federal petition for writ of habeas 19 corpus, which the magistrate judge characterized as a "protective petition" to avoid further 20 running of the AEDPA statute of limitations. The Order part directed petitioner to add his 21 unexhausted federal claims to a then pending state habeas petition, and do so forthwith regardless 22 of any sought review of the Order/Findings and Recommendations with the district judge. 23 Petitioner's counsel complied with the Order. 24 The magistrate judge also found and recommended that the federal petition, a

25 mixed petition, be stayed pending completion of the state habeas proceedings. Respondent 26 objected to the recommendation on April 14, 2007 on account of a perceived lack of good cause 1

1 to permit a mixed petition to be stayed pending further exhaustion. See Rhines v. Weber, 544 2 U.S. 269 (2005). For reasons not known, the then assigned district judge did not rule on the 3 objections. Thereafter, the case was assigned to a visiting judge, and finally to the undersigned on 4 April 30, 2008. However, respondent's objections to the March 26 Order/Findings and 5 Recommendations were not brought to the undersigned's attention. Thus, the federal petition has 6 been de facto stayed since March 26, 2007. 7 On July 7, 2009, petitioner's counsel brought to the undersigned's attention that

8 the objections remained outstanding, but also notified the court that one of the pending state 9 petitions had been decided by the state supreme court on June 24, 2009.1 Petitioner asked for 10 clarification that a stay was indeed in effect. 11 Due to the procedural history, the court need not obtain a response to petitioner's

12 Motion for Stay and For Clarification of Previous Stay of Proceedings. The undersigned has 13 reviewed the March 26, 2007 Findings and Recommendations de novo. For the reasons stated 14 therein, and the passage of time as explained above, the undersigned adopts the Findings and 15 Recommendations in their entirety. The stay of these federal proceedings is now formally 16 ordered. Petitioner's Motion for Stay and for Clarification etc. (Docket # 28) is denied as moot. 17 Petitioner and Respondent shall file a status report before the magistrate judge

18 within sixty (60) days relating the status of the state habeas proceedings, and further contemplated 19 proceedings in this federal action if the state action is finally resolved. 20 IT IS SO ORDERED. 21 Dated: July 16, 2009 22 23 24 25 26 Evidently, a "protective petition" filed with the state supreme court on July 2, 2004 has not yet been ruled upon. 2
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/s/ John A. Mendez UNITED STATES DISTRICT JUDGE