(HC) Booker v. Lynch
Filing
11
ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 11/17/2020 ORDERING Clerk to assign a district judge and RECOMMENDING #9 Motion to Stay be denied. Assigned and referred to Judge Troy L. Nunley. Objections due within 30 days of service of the findings and recommendations. (Henshaw, R)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
JAMES BOOKER,
12
13
14
15
Petitioner,
Case No. 2:20-cv-01894-NONE-JDP
FINDINGS AND RECOMMENDATIONS TO
DENY PETITIONER’S MOTION TO STAY
v.
OBJECTIONS DUE IN THIRTY DAYS
J. LYNCH,
ECF No. 9
Respondent.
16
17
Petitioner James Booker, a state prisoner without counsel, filed a writ of habeas corpus
18
under 28 U.S.C. § 2254. ECF No. 1. I dismissed that petition with leave to amend on October 6,
19
2020 after finding that the petition appeared to contain only unexhausted claims. ECF No. 8 at 2.
20
In a footnote, I also noted that petitioner’s claims might be time-barred. Id. at 2 n.1. My order
21
gave petitioner thirty days to file an amended petition which addressed both issues. Id. at 2. As
22
of this filing, petitioner has not filed an amended petition. He has, however, filed a motion to
23
stay, ECF No. 9, which I recommend be denied without prejudice.
24
Petitioner’s motion fails because there is no longer any petition to stay. As state above, I
25
dismissed his initial petition with leave to amend on October 6 and before petitioner motioned for
26
a stay under Rhines v. Weber, 544 U.S. 269 (2005). At that point, the initially filed petition was
27
no longer operative. I will deny petitioner’s motion to stay without prejudice. If he wishes to
28
obtain a stay under Rhines, he should file an amended petition and then resubmit a motion to stay.
1
1
He is advised that a petitioner seeking a Rhines stay must show: (1) good cause for his failure to
2
exhaust before advancing to federal court, (2) that the unexhausted claims are not “plainly
3
meritless,” and (3) that he has not engaged in “abusive litigation tactics or intentional delay.” 544
4
U.S. at 277-78. He should discuss those elements in any future motion to stay he files.
5
6
It is ORDERED that the Clerk of Court shall assign a district judge to rule on these
findings and recommendations.
I recommend that petitioner’s motion for a stay be denied. ECF No. 9. These findings
7
8
and recommendations are submitted to the U.S. District Court judge presiding over this case
9
under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States
10
District Court, Eastern District of California. Within thirty days of the service of the findings and
11
recommendations, petitioner may file written objections to the findings and recommendations
12
with the court and serve a copy on all parties. That document must be captioned “Objections to
13
Magistrate Judge’s Findings and Recommendations.” The district judge will then review the
14
findings and recommendations under 28 U.S.C. § 636(b)(1)(C).
15
16
IT IS SO ORDERED.
17
Dated:
18
19
November 17, 2020
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE
20
21
22
23
24
25
26
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?