Shorter v. Montgomery et al

Filing 23

ORDER signed by Magistrate Judge Allison Claire on 12/17/2018 APPROVING 22 Stipulation to Stay the Case; GRANTING 20 Motion to Stay; VACATING all currently pending deadlines and hearings; ORDERING Petitioner to file a state court petition for his claim related to Senate Bill 1437 no later than 1/30/2019; ORDERING Petitioner to file a case status report every 60 days, advising the court of the progress of his state habeas petition; ORDERING Petitioner to notify this court of the decision, req uest a lift of the stay, and, if necessary, file an amended petition setting forth all exhausted claims within 30 days of a decision by the state's highest court exhausting his new claim; and DIRECTING the Clerk of Court to administratively close this case. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHANON SHORTER,

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Petitioner,

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No. 2:18-cv-0537 KJM AC P

v.

ORDER

WARREN L. MONTGOMERY,

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Respondent.

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Petitioner is a state prisoner proceeding through counsel on a fully exhausted petition for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. He currently seeks a stay and abeyance

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under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), in order to exhaust a claim based on recently

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passed Senate Bill 1437, which will go into effect on January 1, 2019. ECF No. 20. He asserts

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that the claim he seeks to pursue will include “federal constitutional issues of Fourteenth

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Amendment due process and equal protection.” ECF No. 20-1 at 2. The motion for stay is

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currently set for hearing on January 9, 2019. ECF No. 21.
The parties have now filed a stipulation that the motion to stay should be granted. ECF

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No. 22. They further stipulate that petitioner shall file a petition in state court no later than

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January 30, 2019, and in the event the state petition is denied, petitioner shall file an amended

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petition in this case no later than thirty days after the claim has been exhausted. Id.

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. The parties’ stipulation to stay the case (ECF No. 22) is approved.

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2. Petitioner’s motion to stay (ECF No. 20) is GRANTED.

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3. All currently pending deadlines and hearings, including petitioner’s deadline to file a

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traverse and the January 9, 2019 hearing, are vacated.
4. Petitioner shall proceed to file a state court petition for his claim related to Senate Bill
1437 no later than January 30, 2019.
5. Petitioner shall file a case status report every sixty days, advising the court of the
progress of his state habeas petition.
6. Within thirty days of a decision by the state’s highest court exhausting his new claim,

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petitioner must notify this court of the decision and at that time request a lift of the stay and, if

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necessary, file an amended petition setting forth all of his exhausted claims.

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7. The Clerk of the Court is directed to administratively close this case.
DATED: December 17, 2018

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