Monschke v. Cross et al

Filing 20

ORDER granting 4 Motion to Stay signed by Magistrate Judge Karen L Strombom. Petitioner will advise the court within thirty (30) days of receiving a final State court ruling. (MET) cc: Petitioner

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 KURTIS MONSCHKE, NO. C11-5276/KLS 10 11 Petitioner, ORDER GRANTING PETITIONER’S MOTION TO STAY v. 12 JAMES N. CROSS and ELDON VAIL, 13 Respondents. 14 15 Before the court is Petitioner’s motion to stay his federal habeas proceedings pending conclusion of the pending state court proceedings. ECF No. 4. Respondents do not object to 16 Petitioner’s motion. ECF No. 15. Having reviewed the motion, response, and balance of the 17 18 19 record, the undersigned finds that it is proper to stay these proceedings until Mr. Monschke’s state court proceedings have been completely adjudicated. BACKGROUND 20 21 Mr. Monschke filed a habeas corpus petition in this Court on April 12, 2011, in which 22 he challenges his state court convictions. ECF No. 1. On the same day, Mr. Monschke filed a 23 motion to stay and abey his habeas proceedings. ECF No. 4. Mr. Monschke seeks a stay until 24 25 his state court proceedings are concluded. On April 16, 2011, his counsel filed a motion for 26 ORDER 1 1 discretionary review in the Washington Supreme Court in Case No. 85829-2. That motion is 2 still pending. 3 DISCUSSION 4 5 The court may stay a petition where the stay would be a proper exercise of discretion. 6 Rhines v. Weber, 125 S. Ct. 1528, 1534 (2005); see also Fetterly v. Paskett, 997 F.2d 1295 (9th 7 Cir. 1993); Calderon v. United States Dist. Court (Thomas), 144 F.3d 618, 620 (9th Cir. 1998); 8 Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000). 9 10 The court agrees that a stay of this federal habeas proceeding is the appropriate course of action and that neither party shall be prejudiced by such a stay. The stay shall remain in 11 place until such time as Mr. Monschke notifies this court and the Respondent in writing that 12 13 the pending state court proceedings are completed. Once the pending state court proceedings 14 are completed, Respondent shall have 45 days to file his answer to Mr. Monschke’s habeas 15 petition from the date of the court’s Order dissolving the stay. 16 Accordingly, it is ORDERED: 17 (1) 18 Petitioner’s motion for a stay (ECF No. 4) is GRANTED and this matter is STAYED pending resolution of the state court proceedings. 19 (2) Petitioner shall advise the Court within thirty (30) days of receiving a final 20 21 22 State court ruling. DATED this 23rd day of May, 2011. A 23 24 Karen L. Strombom United States Magistrate Judge 25 26 ORDER 2

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