Grubham v. State of Washington et al

Filing 23

ORDER granting the Motions to Stay this petition and hold it in abeyance (ECF Nos. 10 and 18 ). Signed by Magistrate Judge J Richard Creatura.(CMG; cc to Petitioner)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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BRADLEY ALLEN GRUBHAM,

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Petitioner,
v.

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ORDER GRANTING PETITIONER’S
MOTION TO STAY THIS PETITION
AND HOLD IT IN ABEYANCE

SUPERINTENDENT OBERLAND,

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CASE NO. C13-5646 RJB-JRC

Respondent.

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The District Court has referred this 28 U.S.C. § 2254 petition to the undersigned
Magistrate Judge. Petitioner asks that the Court stay this matter and hold it in abeyance (ECF
No. 18). This is petitioner’s second motion to stay this matter and hold it in abeyance. When
petitioner first filed this motion, he did not sign the pleadings (ECF No. 10). Respondent has
filed a response to petitioner’s motion and agrees that this petition should be stayed (ECF No.
21).
District courts may use a “stay-and-abeyance” procedure while a petitioner exhausts his
claims in state court. Rhines v. Weber, 544 U.S. 269, 275-77; Calderon v. United States District
Court (Taylor), 134 F.3d 981, 988 (9th Cir.1998). In determining whether the petition should be

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ORDER GRANTING PETITIONER’S MOTION
TO STAY THIS PETITION AND HOLD IT IN
ABEYANCE - 1

1 stayed, the Court must also “be mindful that AEDPA aims to encourage the finality of sentences
2 and to encourage petitioners to exhaust their claims in state court before filing in federal court.”
3 Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008), cert. denied, 129 S.Ct. 2771 (2009)
4 (holding that petitioner’s “impression” that defense counsel had exhausted all of the issues in
5 state court did not fulfill the requirement to show “good cause”).
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Both parties agree this action should be stayed. The Court grants petitioner’s uncontested

7 motion. The matter is stayed until May 9, 2014. Petitioner will file a report and, if needed, a
8 motion to extend the stay on or before April 30, 2014 -- ten days before the stay ends. Petitioner
9 will inform the Court of the status of his state proceedings. Petitioner’s report will include the
10 state court cause number. Further, if the state court dismisses the petition or terminates review,
11 petitioner will inform the Court and file a motion to lift the stay within 30 days of the state court
12 taking action. Petitioner’s failure to file a proper report or inform the Court of the termination of
13 state review will result in the Court issuing a report and recommendation that this petition be
14 dismissed.
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The Clerk’s office is directed to remove ECF motions 10 and 18 from the Court’s

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Dated this 6th day of November, 2013.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER GRANTING PETITIONER’S MOTION
TO STAY THIS PETITION AND HOLD IT IN
ABEYANCE - 2