Odom v. Adams

Filing 14

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 10/2/2017 RECOMMENDING petitioner's 13 motion to stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), be granted; petitioner be directed to immediately pro ceed to exhaust her state remedies; petitioner be directed to file a case status report every 60 days, advising the court of the progress of her state habeas petition; petitioner be directed that within 30 days of a decision by the state's highe st court exhausting her new claims she must notify this court of the decision and at that time request a lift of the stay and file an amended petition setting forth all of her exhausted claims; and the Clerk be directed to administratively close this case. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RYAN BIGOSKI ODOM,

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No. 2:17-cv-0233 JAM AC P

Petitioner,
v.

FINDINGS AND RECOMMENDATIONS

D.G. ADAMS,
Respondent.

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Petitioner, a state prisoner proceeding pro se on an application for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254, seeks a stay to permit exhaustion of newly discovered unexhausted

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claims. ECF No. 13. Respondent has not responded to the motion and is therefore deemed to be

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unopposed to the requested stay.

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Petitioner challenges her conviction and sentence on three grounds, all of which she

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asserts have been exhausted in state court. ECF No. 1 at 12. On August 3, 2017, petitioner filed

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a motion for stay under Rhines v. Weber, 544 U.S. 269 (2005), in order to exhaust additional

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claims. ECF No. 11. However, because the motion did not address the three factors necessary

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for granting a Rhines stay, the motion was denied without prejudice. ECF No. 12. Petitioner was

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advised of her options for obtaining a stay under Rhines or Kelly v. Small, 315 F.3d 1063 (9th

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Cir. 2003), or of proceeding on the petition as is, and was ordered to inform the court how she

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wished to proceed in light of her representation that the current petition was fully exhausted. Id.
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In directing petitioner to notify the court how she would like to proceed, Petitioner was also

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advised of the procedures for and consequences of requesting a stay under Rhines or Kelly, and of

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the possible consequences of proceeding without a stay. Id. at 1-2, 3.

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Petitioner has now filed a motion for stay and abeyance under Kelly so that she can

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exhaust her newly discovered claims in state court. ECF No. 13. A stay pursuant to Kelly stays

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only a fully exhausted petition, does not require a showing of good cause, and does not guarantee

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the timeliness of claims that are exhausted in the future and then presented to this court. King v.

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Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009). In recommending that petitioner’s request for a

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stay be granted, the court expresses no opinion as to whether petitioner’s currently unexhausted

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claims will be timely once exhausted and brought in this court.
If the recommendation to grant the motion for stay is adopted, petitioner will be required

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to provide the court with regular status updates. Furthermore, once petitioner receives an order

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from the California Supreme Court exhausting her additional claims, she will need to notify this

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court within thirty days and file an amended petition. The amended petition should include all of

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petitioner’s exhausted grounds for relief, both those included in the present petition and those that

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are newly exhausted.

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The case will be administratively closed while the case is stayed and will be re-opened

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once petitioner notifies the court that she has exhausted her claims in state court. Petitioner

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should continue to use this case name and number when filing documents related to this case,

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including when she files status reports and notifies the court that her claims have been exhausted.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Petitioner’s motion for a stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir.

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2003), (ECF No. 13) be granted;

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2. Petitioner be directed to immediately proceed to exhaust her state remedies;

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3. Petitioner be directed to file a case status report every sixty days, advising the court of

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the progress of her state habeas petition;
4. Petitioner be directed that within thirty days of a decision by the state’s highest court
exhausting her new claims she must notify this court of the decision and at that time request a lift
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of the stay and file an amended petition setting forth all of her exhausted claims; and

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

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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 filed and served 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 2, 2017

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