Opinion
3:23-cv-05582-JCC-BAT
09-25-2023
SMOKEY FERNANDEZ, Petitioner, v. JASON BENNETT, Respondent.
REPORT AND RECOMMENDATION
BRIAN A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE
Petitioner seeks 28 U.S.C. § 2254 habeas relief from his Clark County conviction in case number 18-1-03044-06 for child molestation in the first degree. He requests the Court stay and abey federal proceedings so he can complete state proceedings. Dkts 1, 8. Respondent does not oppose a stay on the following conditions:
Respondent does not oppose a stay for the limited purpose of allowing Fernandez to attempt to exhaust his state court remedies. The Court should condition any such stay on requiring Fernandez to provide status updates to the court every 90 days regarding his efforts to exhaust his federal habeas grounds for relief in the state court. It should also set any such state to expire in one year from the date of issuance unless Fernandez can show good cause for an extension of the stay. By responding to this motion Respondent does not waive any defenses to Fernandez's habeas petition. This includes but is not limited to defenses based upon applicable statute of limitations, exhaustions requirements, and procedural default.
The Court may stay and abey a federal habeas petition to allow a petitioner the chance to present his unexhausted claims to the state courts. Rhines v. Weber, 544 U.S. 269, 275-76 (2005). Respondent does not oppose a stay and has not identified any barrier that would cut against granting a stay such as Petitioner's claims are time-barred or defaulted and cannot be exhausted, or Petitioner is engaging in dilatory tactics. See id. 278.
The Court according recommends:
(1) This matter be stayed pending finalization of state proceedings.
(2) In order to keep track of the status of the case, Petitioner shall file a status report every ninety days. Each status report shall indicate whether state proceedings are still pending or whether state proceedings have concluded, and the stay should be lifted.
(3) Respondent may move at any time, if it appears the state proceeding have been completed and the stay should be lifted.
OBJECTIONS AND APPEAL
This Report and Recommendation is not an appealable order. Therefore, a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit should not be filed until the assigned District Judge enters a judgment in the case.
Objections, however, may be filed and served upon all parties no later than October 10, 2023. The Clerk should note the matter for October 13, 2023, as ready for the District Judge's consideration if no objection is filed. If objections are filed, any response is due within 14 days after being served with the objections. A party filing an objection must note the matter for the Court's consideration 14 days from the date the objection is filed and served. The matter will then be ready for the Court's consideration on the date the response is due. The failure to timely object may affect the right to appeal.