Owens v. People of the State of California et al

Filing 17

ORDER signed by Magistrate Judge Gregory G. Hollows on 3/28/2016 ORDERING petitioner shall file a second motion for relief from judgment, if any, within 30 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH O. OWENS,

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No. 2:15-cv-01286-KJM-GGH

Petitioner,
v.

ORDER

PEOPLE OF THE STATE OF
CALIFORNIA, et al.,
Respondents.

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On January 28, 2016, petitioner filed a letter that seemed to seek relief from the court’s

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judgment dismissing the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF

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No. 14. As a part of petitioner’s motion, he requested reconsideration of the court’s decision to

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deny his motion for a stay and abeyance. Id. On February 8, 2016, the undersigned

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recommended that petitioner’s filing be denied to the extent it could be construed as a motion for

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relief from judgment. ECF No. 15. The court recommended that petitioner’s motion be denied

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because the petition contained only unexhausted claims. Id. Accordingly, the court found that

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the petition could not be held in stay and abeyance in accordance with Rhines v. Weber, 544 U.S.

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269 (2005) because Rhines stays are only available for mixed petitions. Id.

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On February 17, 2016, the Ninth Circuit issued a decision holding that “a district court has

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the discretion to stay and hold in abeyance fully unexhausted petitions under the circumstances

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set forth in [Rhines v. Weber, 544 U.S. 269 (2005)].” Mena v. Long, 813 F.3d 907 (9th Cir.
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2016). On March 21, 2016, the presiding district judge declined to adopt the undersigned’s

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recommendations because of the Ninth Circuit’s holding in Mena. ECF No. 16. Instead, the

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district judge instructed the undersigned to reconsider petitioner’s motion in light of Mena. Id. In

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accordance with the district judge’s order, the court will give petitioner the opportunity to file a

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second motion for relief from judgment taking Mena’s recent holding into consideration. If

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petitioner does not file a second motion within thirty days of its service, the court will reconsider

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his existing motion for relief from judgment (ECF No. 14) in light of Mena. Petitioner is advised

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that he must show good cause for the belated exhaustion of presently unexhausted claims he now

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desires to pursue.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner shall file a second motion for relief from judgment, if any, within thirty days

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of the service of this order.

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Dated: March 28, 2016

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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/GGH17; owen1286.rerecon

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