King v. Davey

Filing 62

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/13/2018 RECOMMENDING 55 motion to stay be denied. Referred to Judge William B. Shubb; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY LEE KING, 12 No. 2:16-cv-1464-WBS-EFB P Petitioner, 13 v. 14 DAVE DAVEY, 15 FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner is a state prisoner proceeding without counsel in an action brought under 28 18 U.S.C. § 2254. On August 30, 2017, the court denied his motion to stay these proceedings and 19 dismissed his amended petition with leave to amend to allow him the opportunity to file a fully 20 exhausted petition and then seek a stay under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). ECF 21 No. 52. Because petitioner had filed a second amended petition during the period between the 22 magistrate judge’s findings and recommendations and the order adopting those recommendations, 23 the court directed respondent to file and serve a response. Id. Respondent has filed an answer to 24 the second amended petition. ECF No. 58. 25 Petitioner again seeks a stay. ECF No. 55. However, in his motion petitioner indicates 26 that he has now completed exhaustion on all claims in the state courts. Id. at 2. A stay is 27 therefore unnecessary. A stay simply halts a federal case while a petitioner exhausts his claims in 28 the state court. Here, petitioner wishes to add the newly-exhausted claims back into case. If 1 1 petitioner wishes to add claims he has recently exhausted back into the petition, he must file a 2 motion to amend the petition. 3 4 It is therefore RECOMMENDED that the September 14, 2017 motion to stay (ECF No. 55) be denied. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 7 after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 10 within the specified time may waive the right to appeal the District Court’s order. Turner v. 11 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 DATED: March 13, 2018. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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