Peterson v. Biter

Filing 24

ORDER signed by District Judge Troy L. Nunley on 8/10/2020 DENYING Petitioner's Motion for Stay (ECF No. 23 ); ADOPTING the findings and recommendations filed 3/13/2020 (ECF No. 20 ), in full; DENYING the petition for writ of habeas corpus; and the Court declines to issue the certificate of appealability in 28 U.S.C. § 2253. CASE CLOSED(Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KELVIN PETERSON,

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No. 2:16-cv-00251-TLN-DB

Petitioner,

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v.

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MARTIN BITER,

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ORDER

Respondent.

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Petitioner is a state inmate proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge

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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On March 13, 2020, the magistrate judge assigned to this action issued findings and

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recommendations recommending that the petition be denied. (ECF No. 20.) The findings and

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recommendations were served on all parties and contained notice that any objections to the

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findings and recommendations were to be filed within fourteen days. (Id.)

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On March 20, 2020, Petitioner requested additional time to file objections to the findings

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and recommendations due to the COVID-19 pandemic. (ECF No. 21.) Petitioner was given an

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additional sixty days to file any objections. (ECF No. 22.) Those sixty days have now expired,

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and Petitioner has not filed objections or requested additional time to do so.

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Petitioner has, however, filed a motion for stay pursuant to Rhines v. Weber, 544 U.S. 269
(2005). (ECF No. 23.) Therein, Petitioner argues the Court should impose a stay so that he can

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pursue a claim that trial counsel was ineffective in failing to investigate a possible insanity

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defense. This claim was not included in the petition and has only now been alleged after the

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magistrate judge issued the pending findings and recommendations. Moreover, the Petition

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presented is wholly exhausted and therefore the Court cannot impose a stay pursuant to Rhines.

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See Rhines, 544 U.S. at 277-78; Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005) (“Rhines

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applies to stays of mixed petitions”); Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s Motion for Stay (ECF No. 23) is DENIED;

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2. The findings and recommendations filed March 13, 2020 (ECF No. 20), are

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ADOPTED IN FULL;

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3. The petition for writ of habeas corpus is DENIED; and

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4. The Court declines to issue the certificate of appealability in 28 U.S.C. § 2253.

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IT IS SO ORDERED.

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DATED: August 10, 2020

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Troy L. Nunley
United States District Judge

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