Walter Glenn Compton v. Montgomery, No. 2:2016cv08557 - Document 14 (C.D. Cal. 2017)

Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS of United States Magistrate Judge by Judge Otis D. Wright, II for Report and Recommendation (Issued) 13 . (mba)
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Walter Glenn Compton v. Montgomery Doc. 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 WALTER G. COMPTON, 12 13 14 15 Case No. CV 16-08557-ODW (KES) Petitioner, v. WARREN MONTGOMERY, Warden, ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE Respondent. 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, Petitioner’s Motion for Stay and Abeyance, Respondent’s Opposition to Motion for Stay and Abeyance, Petitioner’s Reply to Opposition to Motion for Stay and Abeyance, the other records on file herein, and the Report and Recommendation of the United States Magistrate Judge. No objections to the Report and Recommendation were filed. The Court accepts the findings and recommendations of the Magistrate Judge. IT IS THEREFORE ORDERED that: (1) Petitioner’s request for a stay pursuant to Rhines is DENIED; (2) Petitioner’s request for a stay pursuant to Kelly is GRANTED; and (3) Petitioner, if he elects to pursue a Kelly stay, is directed to amend his federal Petition to delete the unexhausted claims. The Court will then Dockets.Justia.com 1 stay and hold in abeyance the amended, fully exhausted Petition while Petitioner 2 returns to state court to exhaust his deleted claims. Should Petitioner fail to file an 3 amended Petition containing only his exhausted claims within thirty (30) days from 4 the date of entry of this Order, then the Court will issue a second Report and 5 Recommendation recommending that the Petition be dismissed as a “mixed” 6 petition. 7 8 DATED: March 28, 2017 9 10 11 ____________________________________ OTIS D. WRIGHT II UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2