Opinion
21-cv-0819-GPC-WVG
11-30-2021
ANDREW VALLES, Petitioner, v. KATHLEEN ALLISON, Secretary, Respondent.
ORDER ADOPTING REPORT AND RECOMMENATION DENYING PETITIONER'S MOTION FOR STAY AND ABEYANCE AS MOOT
Hon. Gonzalo P. Curiel, United States District Judge
On April 26, 2021, Petitioner Andrew Valles (“Petitioner”), a state prisoner proceeding pro se and in forma pauperis, filed a petition for writ of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (Dkt. No. 1, Pet.) In response to the Court's order dismissing the petition for failing to allege exhaustion of state judicial remedies, (Dkt. No. 3), on June 8, 2021, Petitioner filed a motion for stay and abeyance and on July 19, 2021, a supplemental motion for stay and abeyance under Rhines v. Weber, 544 U.S. 269 (2005). (Dkt. Nos. 5, 8.) On August 11, 2021, Respondent filed a non-opposition because Petitioner had filed a habeas petition in the California Supreme Court on June 4, 2021. (Dkt. No. 8.) On November 2, 2021, the Magistrate Judge issued a report and recommendation that the motion for stay and abeyance be denied as moot because Petitioner exhausted his claims with the California Supreme Court. (Dkt. No. 12.) The California Supreme Court denied Petitioner's petition for review on August 18, 2021. (Id. at 2.) On November 17, 2021, Petitioner filed a non-opposition and non-objection to the report and recommendation stating that he accepts the court's ruling denying the motion as moot. (Dkt. No. 13.) He states he is prepared to proceed with filing his amended petition. (Id.)
During the pendency of the motion for stay and abeyance, Petitioner exhausted his state court remedies. (Dkt. No. 12 at 2 & n.1.) Therefore, because Petitioner has satisfied the exhaustion requirement, the Court ADOPTS the report and recommendation denying Petitioner's motion for stay and abeyance as MOOT. Petitioner is directed to file his amended petition on or before December 30, 2021 .
IT IS SO ORDERED.