Opinion
CV-22-08216-PCT-JJT (ESW)
11-29-2023
Randolph A. Jackson, Jr., Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
EILEEN S. WILLETT, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT COURT:
This is a habeas proceeding initiated by Arizona state prisoner Randolph A. Jackson, Jr. (“Petitioner”) pursuant to 28 U.S.C. § 2254. Pending before the Court is Petitioner's Motion (Doc. 25) requesting that the Court stay the matter pending the Arizona Court of Appeals' decision regarding Petitioner's request for review of the trial court's summary dismissal of Petitioner's fifth notice of post-conviction relief.
The United States Supreme Court has instructed that a “stay and abeyance should be available only in limited circumstances” and is “only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court.” Rhines v. Weber, 544 U.S. 269, 277 (2005) (explaining that a stay “frustrates AEDPA's objective of encouraging finality” and “undermines AEDPA's goal of streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his claims in state court prior to filing his federal petition”). Where a petitioner “had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics,” “the district court should stay rather than dismiss, the mixed petition.” Id. at 278.
Petitioner's Motion (Doc. 25) pertains to a habeas claim presented in the First Amended Petition. Respondents concede that all of Petitioner's habeas claims have been exhausted. (Doc. 22; Doc. 26 at 2). Consequently, a stay is not appropriate under Rhines. See Mena v. Long, 813 F.3d 907, 911-12 (9th Cir. 2016) (holding that a court has the discretion to stay a fully unexhausted habeas petition under “the circumstances set forth in Rhines ” and stating that “a stay is granted only when the petitioner shows, among other things, ‘good cause for his failure to exhaust'”). As Petitioner's Motion (Doc. 25) does not present a basis for staying this matter, IT IS RECOMMENDED that the Court deny Petitioner's “Second Request to Stay Petition Until Arizona Div. 1 Court of Appeals Makes a Ruling Regarding New Evidence” (Doc. 25).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.