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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY C. GRIFFIN,

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Petitioner,

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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

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habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s motion for

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a stay of these proceedings (Doc. 24). Petitioner argues that the relevant issue in the

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respondent’s motion to dismiss is currently certified by the Ninth Circuit to the California

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Supreme Court. This issue relates to amount of time between filing state petitions that is

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reasonable in order to qualify for a so called “gap tolling.” Petitioner argues until the California

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Supreme Court answers the question, this court should not proceed on the motion to dismiss.

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However, this court is bound by the decisions of the Ninth Circuit. Until such

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time as the Ninth Circuit rules otherwise, the discussion set forth in the findings and

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recommendations remain the current law. If the findings and recommendations are adopted, and
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petitioner’s petition is dismissed, plaintiff may chose to pursue an appeal of the issue. In the

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meantime, the undersigned finds no good cause to issue a stay in these proceedings.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s motion to stay (Doc.
24) is denied.

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DATED: September 18, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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