Calderon v. Foulks

Full title: LUIS CALDERON, Petitioner, v. FREDERIC FOULKS, Respondent.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Jul 19, 2016

Case No. 1:16-cv-00276-LJO-SAB-HC (E.D. Cal. Jul. 19, 2016)

Opinion

Case No. 1:16-cv-00276-LJO-SAB-HC

07-19-2016

LUIS CALDERON, Petitioner, v. FREDERIC FOULKS, Respondent.

Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE

ORDER ADOPTING FINDINGS AND RECOMMENDATION (ECF No. 12), DENYING PETITIONER'S MOTION FOR A RHINES STAY, AND GRANTING PETITIONER'S REQUEST TO PROCEED WITH KELLY STAY

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 11, 2016, the Magistrate Judge issued Findings and Recommendation that recommended denying Petitioner's motion for stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005), but allowing Petitioner to proceed with the stay procedure set forth in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). (ECF No. 12). On July 14, 2016, Petitioner filed his concurrence with the Magistrate Judge's recommendation. (ECF No. 15).

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that the Findings and Recommendation is supported by the record and proper analysis, and there is no need to modify the Findings and Recommendation. /// ///

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendation issued on May 11, 2016 (ECF No. 12) is ADOPTED IN FULL;

2. Petitioner's motion for a stay under Rhines is DENIED;

3. Petitioner's motion for a Kelly stay is GRANTED; and

4. Petitioner is DIRECTED to file by August 15, 2016, an amended petition for writ of habeas corpus deleting any unexhausted claims. Thereafter, the Court will stay the proceedings pending exhaustion of state remedies.

IT IS SO ORDERED.

Dated: July 19 , 2016

/s/ Lawrence J. O'Neill

UNITED STATES CHIEF DISTRICT JUDGE

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