Kennedy v. Gastello

Filing 7

ORDER FOR REASSIGNMENT: Re 6 Request filed by Mark Anthony Kennedy. Signed by Magistrate Judge Laurel Beeler on 5/16/2016. (lsS, COURT STAFF) (Filed on 5/16/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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MARK ANTHONY KENNEDY,

Case No. 16-cv-01686-LB

Plaintiff,
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v.

ORDER FOR REASSIGNMENT

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J. GASTELLO,

[Re: ECF No. 6 ]

Defendant.
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The petitioner filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

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and consented to proceed before a magistrate judge. On April 29, 2016, the court issued an order

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to show cause why the petition should not be granted. The respondent has not yet appeared in this

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action, and has not yet consented to proceed before a magistrate judge.

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The petitioner has filed a request for stay and abeyance so that he may return to state court to

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exhaust an additional claim. A stay and abeyance “is only appropriate when the district court

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determines there was good cause for the petitioner‟s failure to exhaust his claims first in state

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court,” the claims are not meritless, and there are no intentionally dilatory litigation tactics by the

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petitioner. Rhines v. Weber, 544 U.S. 269, 277-78 (2005). Here, the petitioner did not describe the

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unexhausted claim (other than to mention it was for ineffective assistance of counsel), or show

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good cause for failing to exhaust it before filing his petition. Resolution of the petitioner‟s request

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for a stay and abeyance would be dispositive as to the unexhausted claim, and therefore may not

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be decided by a magistrate judge without consent of all parties. See Mitchell v. Valenzuela, 791

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F.3d 1166, 1167 (9th Cir. 2015) (motion for stay and abeyance in a habeas action “is generally

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(but not always) dispositive as to the unexhausted claims. When it is dispositive, a magistrate

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judge is without authority to „hear and determine‟ such a motion, but rather must submit a report

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and recommendation to the district court”). Because the consent of the respondent has not been

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obtained, and waiting for the respondent to consent or decline to consent before ruling on the

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request for a stay may work to the detriment of the petitioner (e.g., by making a claim untimely),

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the clerk shall cause this action to be reassigned to a district judge.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: May 16, 2016
______________________________________
LAUREL BEELER
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARK ANTHONY KENNEDY,

Case No. 3:16-cv-01686-LB

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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J. GASTELLO,
Defendant.

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United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

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That on May 16, 2016, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Mark Anthony Kennedy
California Mens Colony East (East) Cell 5388
PO Box 8101
San Luis Obispo, CA 93409-8101

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Dated: May 16, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Lashanda Scott, Deputy Clerk to the
Honorable LAUREL BEELER
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