Opinion
NO. ED CV 17-00257-VBF-GJS
08-25-2017
RICARDO ESTRADA BARBARIN, Petitioner, v. RAYMOND MADDEN, Respondent.
ORDER
Overruling Petitioner's Objections;
Adopting Report & Recommendation;
Denying Petitioner's Stay Motion (Doc #6);
Directing Respondent to Respond to Habeas Petition By Friday, September 29, 2017
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition By a Person in State Custody for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, petitioner Barbarin's motion for Stay and Abeyance (CM/ECF Document ("Doc") 6), the respondent's opposition to the stay (Doc 9 with Lodged Documents at Doc 10) and petitioner's reply thereto (Doc 16), petitioner's motion to amend the habeas petition and the order denying that motion (Docs 17 and 19), the June 30, 2017 Report and Recommendation of the United States Magistrate Judge ("R&R") (Doc 21) and petitioner's objection (Doc 22), and the applicable law. The time for the respondent government to respond to petitioner's objections has passed, so the Court will rule without delay. The Court has conducted a de novo review of those matters to which petitioner has objected.
Petitioner seeks a stay of this action while he exhausts three claims in California state court in addition to the eight claims asserted in the petition. The R&R rightly concludes that under Ninth Circuit precedent, a Rhines v. Weber stay is categorically unavailable where the federal habeas petition contains only exhausted claims. The R&R is also right to conclude that a Kelly stay would be pointless given that the unexhausted claims will be untimely once petitioner later seeks to amend this petition to include them. Thus, the R&R is right to recommend that Petitioner be directed to elect one of his two remaining options. Petitioner states that he objects to the R&R "to preserve any and all rights of appealability," but further elects Option Two as stated in the R&R, namely, to proceed with the eight claims alleged in the existing Petition.
Finding no error of law, fact, or logic in the R&R, the Court agrees that petitioner's stay motion should be denied, and further agrees that petitioner is entitled to exercise option two as he has already done.
ORDER
Petitioner Barbarin's objection [Doc # 22] is OVERRULED.
The Report and Recommendation [Doc # 21] is ADOPTED.
Petitioner's Motion for Stay of Proceedings [Doc # 6] is DENIED.
No later than Friday, September 29, 2017, the respondent SHALL RESPOND to the habeas corpus petition pursuant to Paragraphs IV-V of the Magistrate Judge's Order of February 16, 2017 [Dkt. 4].
IT IS SO ORDERED. Dated: Friday, August 25, 2017
/s/_________
VALERIE BAKER FAIRBANK
UNITED STATES DISTRICT JUDGE