(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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES BOOKER,

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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.

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Petitioner James Booker, a state prisoner without counsel, filed a writ of habeas corpus

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under 28 U.S.C. § 2254. ECF No. 1. I dismissed that petition with leave to amend on October 6,

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2020 after finding that the petition appeared to contain only unexhausted claims. ECF No. 8 at 2.

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In a footnote, I also noted that petitioner’s claims might be time-barred. Id. at 2 n.1. My order

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gave petitioner thirty days to file an amended petition which addressed both issues. Id. at 2. As

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of this filing, petitioner has not filed an amended petition. He has, however, filed a motion to

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stay, ECF No. 9, which I recommend be denied without prejudice.

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Petitioner’s motion fails because there is no longer any petition to stay. As state above, I

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dismissed his initial petition with leave to amend on October 6 and before petitioner motioned for

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a stay under Rhines v. Weber, 544 U.S. 269 (2005). At that point, the initially filed petition was

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no longer operative. I will deny petitioner’s motion to stay without prejudice. If he wishes to

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obtain a stay under Rhines, he should file an amended petition and then resubmit a motion to stay.
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He is advised that a petitioner seeking a Rhines stay must show: (1) good cause for his failure to

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exhaust before advancing to federal court, (2) that the unexhausted claims are not “plainly

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meritless,” and (3) that he has not engaged in “abusive litigation tactics or intentional delay.” 544

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U.S. at 277-78. He should discuss those elements in any future motion to stay he files.

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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

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and recommendations are submitted to the U.S. District Court judge presiding over this case

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under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States

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District Court, Eastern District of California. Within thirty days of the service of the findings and

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recommendations, petitioner may file written objections to the findings and recommendations

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with the court and serve a copy on all parties. That document must be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” The district judge will then review the

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findings and recommendations under 28 U.S.C. § 636(b)(1)(C).

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IT IS SO ORDERED.

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Dated:
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November 17, 2020
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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