Duran v. Frauenheim

Filing 22

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 08/20/18 RECOMMENDING that petitioner's motion for stay 21 be denied. MOTION to STAY 21 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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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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Petitioner,

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

v.

FINDINGS & RECOMMENDATIONS

SCOTT FRAUENHEIM,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a third motion to stay the

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proceedings. ECF No. 21. His first motion for stay was filed concurrently with his petition and

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

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

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

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was given the opportunity to file another motion for stay and advised of his options regarding

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seeking a stay under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), or amending the petition and

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renewing his request for a Rhines stay. Id. He proceeded to file a motion for stay under Kelly in

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which he stated that he sought to stay the fully exhausted petition while he pursued additional

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claims in the state courts which would potentially make his federal petition unnecessary. ECF

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No. 8 at 1-2. He also stated that if he was unsuccessful in the state courts, he did not intend to

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amend the federal petition to add the new claims because he believed they would be time-barred.

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Id.

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In recommending denial of the previous motion for stay, the court advised petitioner that a

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stay under Kelly was not permissible unless he intended to add the new claims he was pursuing in

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state court to his federal petition. ECF No. 14 at 2. Petitioner’s new motion for stay also states

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that he is seeking to pursue state court remedies and does not make any indication that he will

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seek to pursue those claims in this court if they are unsuccessful in state court. ECF No. 21.

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Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s motion for stay (ECF
No. 21) 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, 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: August 20, 2018

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