(HC) Rivera v. Peery, No. 2:2016cv00856 - Document 30 (E.D. Cal. 2017)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/26/2017 DENYING without prejudice 27 Motion for Leave to File an Amended Petition and RECOMMENDING 28 Motion to Stay be granted; Clerk be directed to a dministratively close this case; and Petitioner be ordered to either file a motion for leave to file an amended petition or file notice that Petitioner will proceed on the original petition within 30 days of exhaustion of state court remedies. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VINCENT RIVERA, 12 Petitioner, 13 14 No. 2:16-cv-0856 KJM CKD P v. ORDER AND S. PEERY, 15 FINDINGS AND RECOMMENDATIONS Respondent. 16 Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas 17 18 corpus under 28 U.S.C. § 2254. Shortly after petitioner filed his traverse, he filed a motion 19 seeking leave to amend his petition and to stay these proceedings while he exhausts state court 20 remedies with respect to additional claims. Good cause appearing, the court will recommend that petitioner’s request for a stay be 21 22 granted pursuant to Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003), and that this action 23 be stayed while petitioner exhausts state court remedies with respect to his new claims.1 Pursuant 24 to Kelly, petitioner’s motion for leave to amend will be denied without prejudice to renewal after 25 he has exhausted state court remedies. Petitioner is informed that, at this point, the court makes 26 no ruling as to whether any claim not presented in his original petition for writ of habeas corpus is 27 28 1 In his opposition to petitioner’s motion for leave to amend and opposition to petitioner’s motion for a stay, respondent does not object to a stay being granted pursuant to Kelly. 1 1 timely under 28. U.S.C. § 2244(d). Such a determination will be made if and when petitioner 2 files a motion for leave to amend and then the limitations issue is raised by respondent either in 3 an opposition to a motion to amend or a motion to dismiss. 4 Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for leave to file an 5 amended petition for writ of habeas corpus (ECF No. 27) is denied without prejudice to renewal 6 after he has exhausted state court remedies with respect to all claims to be presented in any 7 amended petition; and 8 IT IS HEREBY RECOMMENDED that: 9 1. Petitioner’s motion for a stay (ECF No. 28) be granted. 10 2. The Clerk of the Court be directed to administratively close this case; 11 3. Petitioner be ordered to either file a motion for leave to file an amended petition for 12 writ of habeas corpus along with the proposed amended petition, or file notice that petitioner will 13 proceed on the original petition for writ of habeas corpus within 30 days of the exhaustion of state 14 court remedies concerning any claim petitioner may wish to present in an amended habeas 15 petition. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 21 objections shall be served and filed within fourteen days after service of the objections. The 22 parties are advised that failure to file objections within the specified time may waive the right to 23 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 Dated: October 26, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 25 26 27 28 1 rive0856.sty 2