Duran v. Frauenheim

Filing 14

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 2/28/2018 RECOMMENDING 8 Motion to Stay be denied. 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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JOSE ANOTNIO DURAN,

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No. 2:17-cv-2122 KJM AC P

Petitioner,
v.

FINDINGS & RECOMMENDATIONS

SCOTT FRAUENHEIM,
Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. At the same time he filed his petition, petitioner also moved

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for a stay and abeyance under Rhines v. Weber, 544 U.S. 269 (2005). ECF No. 2. The motion

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was denied without prejudice because it appeared from both the petition and the motion that the

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petition was fully exhausted, making a Rhines stay unavailable. ECF No. 7. Petitioner was

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advised of his options regarding seeking a stay under Kelly v. Small, 315 F.3d 1063 (9th Cir.

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2003), or amending the petition and renewing his request for a Rhines stay; he was given thirty

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days to file another motion for stay. Id. Petitioner proceeded to file a motion for stay under Kelly

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in which he states that he seeks to stay the fully exhausted petition while he pursues additional

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claims in the state courts which potentially make his federal petition unnecessary. ECF No. 8 at

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1-2. However, petitioner also states that if he is unsuccessful in the state courts, he does not

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intend to amend the federal petition to add the new claims because he believes they would be
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time-barred. Id.
A stay under Kelly is not permissible unless petitioner intends to add the new claims he is

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pursuing in state court to his federal petition, and the undersigned will therefore recommend

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denying the motion for stay. Petitioner is advised that in court’s experience, a stay is generally

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unnecessary in situations such as this because his state court petition will likely be resolved

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before his federal petition, and if he is successful in state court, he can withdraw his federal

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petition at any time.

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Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s motion for stay (ECF
No. 8) be denied.

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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, petitioner 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.” Petitioner is advised that

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failure to file objections within the specified time may waive the right to appeal the District

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

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DATED: February 28, 2018

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