Rivera v. Peery

Filing 30

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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT RIVERA,

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Petitioner,

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No. 2:16-cv-0856 KJM CKD P

v.

ORDER AND

S. PEERY,

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FINDINGS AND RECOMMENDATIONS
Respondent.

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Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas

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corpus under 28 U.S.C. § 2254. Shortly after petitioner filed his traverse, he filed a motion

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seeking leave to amend his petition and to stay these proceedings while he exhausts state court

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remedies with respect to additional claims.
Good cause appearing, the court will recommend that petitioner’s request for a stay be

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granted pursuant to Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003), and that this action

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be stayed while petitioner exhausts state court remedies with respect to his new claims.1 Pursuant

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to Kelly, petitioner’s motion for leave to amend will be denied without prejudice to renewal after

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he has exhausted state court remedies. Petitioner is informed that, at this point, the court makes

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no ruling as to whether any claim not presented in his original petition for writ of habeas corpus is

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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.
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timely under 28. U.S.C. § 2244(d). Such a determination will be made if and when petitioner

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files a motion for leave to amend and then the limitations issue is raised by respondent either in

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an opposition to a motion to amend or a motion to dismiss.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for leave to file an

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amended petition for writ of habeas corpus (ECF No. 27) is denied without prejudice to renewal

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after he has exhausted state court remedies with respect to all claims to be presented in any

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amended petition; and

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IT IS HEREBY RECOMMENDED that:

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1. Petitioner’s motion for a stay (ECF No. 28) be granted.

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2. The Clerk of the Court be directed to administratively close this case;

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3. Petitioner be ordered to either file a motion for leave to file an amended petition for

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writ of habeas corpus along with the proposed amended petition, or file notice that petitioner will

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proceed on the original petition for writ of habeas corpus within 30 days of the exhaustion of state

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court remedies concerning any claim petitioner may wish to present in an amended habeas

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petition.

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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 fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 26, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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rive0856.sty

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