Boyrs v. Paramo
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 12/14/15 recommending that petitioner's motions for stay and abeyance 7 , 8 be granted. Upon receiving the ruling of the California Supreme Court exhausting petitioner 's as-yet unexhausted grounds, petitioner be required, within 30 days thereafter: a) To inform this court of any such ruling and to request the stay be lifted; and b) To file an amended federal petition containing all of his exhausted claims. Motions 7 ,and 8 referred to Judge William B. Shubb. Objections due within 21 days. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROBERT R. BORYS,
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Petitioner,
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No. 2:15-cv-1942 WBS AC P
v.
FINDINGS & RECOMMENDATIONS
DANIEL PARAMO,
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Respondent.
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Petitioner, a state prisoner proceeding pro se pursuant to 28 U.S.C. § 2254, seeks a stay to
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permit exhaustion of his unexhausted claims. Petitioner is serving a sixty-five year sentence
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following his 2010 conviction in the El Dorado County Superior Court on twenty-six separate
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counts. ECF No. 1 at 1. Petitioner challenges his conviction and sentence on two grounds, both
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of which he states have been exhausted in state court. Id. at 5-8.
Petitioner has now filed two motions for stay and abeyance in which he specifically
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requests a stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), so that he can exhaust
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additional claims in state court.1 ECF Nos. 7, 8. A stay pursuant to Kelly stays only a fully
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exhausted petition, does not require a showing of good cause, and does not guarantee the
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timeliness of claims that are exhausted in the future and then presented to this court. King v.
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In his second motion, petitioner states that he filed a petition in the California Supreme Court
on November 5, 2015, and was assigned case number S230422. ECF No. 8 at 2. According to
the California Supreme Court’s case information website, the petition is still pending.
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Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009). Petitioner states that the petition in this case is
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fully exhausted. ECF No. 1 at 5-8. In recommending petitioner’s request for a stay be granted,
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the court takes no opinion as to whether petitioner’s currently unexhausted claims will be timely
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once exhausted and brought in this court.
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Accordingly, IT IS HEREBY RECOMMENDED that:
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1. Petitioner’s motions for stay and abeyance (ECF Nos. 7, 8) be granted.
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2. Upon receiving the ruling of the California Supreme Court exhausting petitioner’s as-
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yet unexhausted grounds, petitioner be required, within thirty days thereafter:
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a. To inform this court of any such ruling and to request the stay be lifted; and
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b. To file an amended federal petition containing all of his exhausted claims.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days
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after being served with these findings and recommendations, petitioner may file written
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objections with the court. Such a document should be captioned “Objections to Magistrate
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Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Martinez v.
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Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: December 14, 2015
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