Griffin v. Perry

Filing 26

ORDER signed by Magistrate Judge Craig M. Kellison on 09/18/17 DENYING 24 Motion to Stay. (Plummer, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY C. GRIFFIN, 12 Petitioner, 13 14 15 16 17 No. 2:15-cv-1776-MCE-CMK-P vs. ORDER S. PERRY, Respondent. / Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s motion for 19 a stay of these proceedings (Doc. 24). Petitioner argues that the relevant issue in the 20 respondent’s motion to dismiss is currently certified by the Ninth Circuit to the California 21 Supreme Court. This issue relates to amount of time between filing state petitions that is 22 reasonable in order to qualify for a so called “gap tolling.” Petitioner argues until the California 23 Supreme Court answers the question, this court should not proceed on the motion to dismiss. 24 However, this court is bound by the decisions of the Ninth Circuit. Until such 25 time as the Ninth Circuit rules otherwise, the discussion set forth in the findings and 26 recommendations remain the current law. If the findings and recommendations are adopted, and 1 1 petitioner’s petition is dismissed, plaintiff may chose to pursue an appeal of the issue. In the 2 meantime, the undersigned finds no good cause to issue a stay in these proceedings. 3 4 Accordingly, IT IS HEREBY ORDERED that petitioner’s motion to stay (Doc. 24) is denied. 5 6 7 8 DATED: September 18, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2

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