(HC) Rackley v. Pollard, No. 2:2021cv01784 - Document 10 (E.D. Cal. 2021)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/7/2021 ORDERING Clerk to randomly assign a U.S. District Judge to this action and RECOMMENDING 4 Motion to Stay be granted and a stay in this matter be imp osed pending exhaustion of petitioner's state court remedies and within 30 days of the final adjudication by the California Supreme Court of Petitioner's pending petition, Petitioner be directed to inform this court so that the stay may be lifted. Assigned and referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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(HC) Rackley v. Pollard Doc. 10 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LOY LOUIS RACKLEY, 12 Petitioner, 13 14 No. 2:21-cv-1784-EFB P v. ORDER AND FINDINGS AND RECOMMENDATIONS MARCUS POLLARD, Warden, 15 Respondent. 16 On October 12, 2021, the court ordered a response from respondent with respect to 17 18 petitioner’s filing of an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, 19 wherein counsel for petitioner sought a stay and abeyance, setting forth exhausted claims 20 concerning sufficiency of the evidence, with unexhausted claims pending in the California 21 Supreme Court. ECF No. 5. Respondent does not oppose petitioner’s motion for a Rhines stay to exhaust the claims 22 23 that petitioner has already raised and is currently pursuing in state court. ECF No. 8. Good cause 24 appearing, petitioner’s motion for a stay and abeyance of the petition should be granted. Pursuant 25 to Rhines v. Weber, 544 U.S. 269 (2005), petitioner shall notify the court within thirty days of the 26 claims being exhausted. 27 ///// 28 ///// Dockets.Justia.com 1 2 Accordingly, it is ORDERED that the Clerk of the Court shall randomly assign a United States District Judge to this action. 3 Further, it is RECOMMENDED that: 4 1. Petitioner’s motion to stay (ECF No. 4) be granted and a stay in this matter be 5 6 imposed pending exhaustion of petitioner’s state court remedies; and 2. Within thirty days of the final adjudication by the California Supreme Court of 7 petitioner's pending petition, petitioner be directed to inform this court so that the stay 8 may be lifted. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 14 within the specified time may waive the right to appeal the District Court’s order. Turner v. 15 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 DATED: December 7, 2021. 17 18 19 20 21 22 23 24 25 26 27 28 2
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