Rivera v. Peery
ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/26/2017 DENYING without prejudice 27 Motion for Leave to File an Amended Petition and RECOMMENDING 28 Motion to Stay be granted; Clerk be directed to a dministratively close this case; and Petitioner be ordered to either file a motion for leave to file an amended petition or file notice that Petitioner will proceed on the original petition within 30 days of exhaustion of state court remedies. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:16-cv-0856 KJM CKD P
FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas
corpus under 28 U.S.C. § 2254. Shortly after petitioner filed his traverse, he filed a motion
seeking leave to amend his petition and to stay these proceedings while he exhausts state court
remedies with respect to additional claims.
Good cause appearing, the court will recommend that petitioner’s request for a stay be
granted pursuant to Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003), and that this action
be stayed while petitioner exhausts state court remedies with respect to his new claims.1 Pursuant
to Kelly, petitioner’s motion for leave to amend will be denied without prejudice to renewal after
he has exhausted state court remedies. Petitioner is informed that, at this point, the court makes
no ruling as to whether any claim not presented in his original petition for writ of habeas corpus is
In his opposition to petitioner’s motion for leave to amend and opposition to petitioner’s motion
for a stay, respondent does not object to a stay being granted pursuant to Kelly.
timely under 28. U.S.C. § 2244(d). Such a determination will be made if and when petitioner
files a motion for leave to amend and then the limitations issue is raised by respondent either in
an opposition to a motion to amend or a motion to dismiss.
Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for leave to file an
amended petition for writ of habeas corpus (ECF No. 27) is denied without prejudice to renewal
after he has exhausted state court remedies with respect to all claims to be presented in any
amended petition; and
IT IS HEREBY RECOMMENDED that:
1. Petitioner’s motion for a stay (ECF No. 28) be granted.
2. The Clerk of the Court be directed to administratively close this case;
3. Petitioner be ordered to either file a motion for leave to file an amended petition for
writ of habeas corpus along with the proposed amended petition, or file notice that petitioner will
proceed on the original petition for writ of habeas corpus within 30 days of the exhaustion of state
court remedies concerning any claim petitioner may wish to present in an amended habeas
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
after being served with these findings and recommendations, any party may file written
objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
objections shall be served and filed within fourteen days after service of the objections. The
parties are advised that failure to file objections within the specified time may waive the right to
appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: October 26, 2017
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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