Opinion
Case No. CV 15-4748-JLS (KK)
05-22-2016
ROBERT A. CORONA, Petitioner, v. ON HABEAS CORPUS, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to Title 28 of the United States Code, section 636, the Court has reviewed the Second Amended Petition for a Writ of Habeas Corpus, the records on file, and the Report and Recommendation of the United States Magistrate Judge. No objections have been filed. The Court accepts the findings and recommendation of the Magistrate Judge.
IT IS THEREFORE ORDERED as follows:
(1) Petitioner's Request for Stay is DENIED insofar as it requests a stay pursuant to Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005) ("Rhines stay"); and
(2) Petitioner's Request for Stay is CONDITIONALLY GRANTED insofar as it requests a stay pursuant to Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003) ("Kelly stay").
It is further ORDERED that Petitioner follow the procedure for a Kelly stay. Accordingly, Petitioner must file a Notice of Dismissal dismissing the unexhausted Claims Four through Ten without prejudice within fourteen (14) days of the date of this order. The Clerk of Court has attached a blank Notice of Dismissal form, which Petitioner should use.
Upon receipt of the Notice of Dismissal, the Court will then issue a separate order to stay and hold in abeyance the fully exhausted Second Amended Petition and allow Petitioner the opportunity to exhaust the dismissed Claims Four through Ten in state court. Petitioner is cautioned that failure to timely dismiss the unexhausted Claims Four through Ten from the Second Amended Petition will result in dismissal of the entire Second Amended Petition without prejudice as a mixed petition. Dated: May 22, 2016
/s/_________
HONORABLE JOSEPHINE L. STATON
UNITED STATES DISTRICT JUDGE