(HC) Booker v. Lynch
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
Case No. 2:20-cv-01894-NONE-JDP
FINDINGS AND RECOMMENDATIONS TO
DENY PETITIONER’S MOTION TO STAY
OBJECTIONS DUE IN THIRTY DAYS
ECF No. 9
Petitioner James Booker, a state prisoner without counsel, filed a writ of habeas corpus
under 28 U.S.C. § 2254. ECF No. 1. I dismissed that petition with leave to amend on October 6,
2020 after finding that the petition appeared to contain only unexhausted claims. ECF No. 8 at 2.
In a footnote, I also noted that petitioner’s claims might be time-barred. Id. at 2 n.1. My order
gave petitioner thirty days to file an amended petition which addressed both issues. Id. at 2. As
of this filing, petitioner has not filed an amended petition. He has, however, filed a motion to
stay, ECF No. 9, which I recommend be denied without prejudice.
Petitioner’s motion fails because there is no longer any petition to stay. As state above, I
dismissed his initial petition with leave to amend on October 6 and before petitioner motioned for
a stay under Rhines v. Weber, 544 U.S. 269 (2005). At that point, the initially filed petition was
no longer operative. I will deny petitioner’s motion to stay without prejudice. If he wishes to
obtain a stay under Rhines, he should file an amended petition and then resubmit a motion to stay.
He is advised that a petitioner seeking a Rhines stay must show: (1) good cause for his failure to
exhaust before advancing to federal court, (2) that the unexhausted claims are not “plainly
meritless,” and (3) that he has not engaged in “abusive litigation tactics or intentional delay.” 544
U.S. at 277-78. He should discuss those elements in any future motion to stay he files.
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
and recommendations are submitted to the U.S. District Court judge presiding over this case
under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States
District Court, Eastern District of California. Within thirty days of the service of the findings and
recommendations, petitioner may file written objections to the findings and recommendations
with the court and serve a copy on all parties. That document must be captioned “Objections to
Magistrate Judge’s Findings and Recommendations.” The district judge will then review the
findings and recommendations under 28 U.S.C. § 636(b)(1)(C).
IT IS SO ORDERED.
November 17, 2020
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE
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