Opinion
Case No. CV 17-6057 SJO(JC)
07-30-2018
DANNY STEPHEN McMANUS, Petitioner, v. W.J. SULLIVAN, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus ("Petition"), the submissions in connection with the Motion to Dismiss the Petition, and all of the records herein, including the June 18,2018 Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"). The Court approves and accepts the Report and Recommendation.
THE COURT HEREBY FINDS:
(1) Grounds Four and Five of the Petition are unexhausted; and
(2) the Petition is "mixed".
THE COURT HEREBY ORDERS:
(1) Petitioner shall elect one of the following options within 14 days of the issuance of this Order:
/// /// /// ///(a) voluntarily dismiss the Petition without prejudice under Federal Rule of Civil Procedure 41(a)(1), with the understanding that any later petition may be time-barred under 28 U.S.C. § 2244(d)(1);
(b) (i) file a first amended petition omitting the unexhausted claims (Grounds Three and Four) and containing only exhausted claims or voluntarily dismiss the aforementioned unexhausted claims from the instant Petition; and (ii) elect to proceed only on the exhausted claims in the Petition/first amended petition with the understanding that he thereby risks forfeiting consideration of the unexhausted claims in federal court, even if he subsequently does exhaust such claims;
(c) (i) file a first amended petition omitting the unexhausted claims (Grounds Three and Four) and containing only exhausted claims or voluntarily dismiss the aforementioned unexhausted claims from the instant Petition; and (ii) seek a stay of the then fully exhausted Petition/first amended petition under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) (as amended) (allowing for stays of fully exhausted federal petitions without showing of good cause), with the understanding that he will be allowed to amend the operative Petition/first amended petition to add any newly exhausted claims only if the claims are timely or "relate back" to the original exhausted claims (see Mayle v. Felix, 545 U.S. 644, 664 (2005)); or
(d) request that the Petition, in its current "mixed" form, be stayed pursuant to Rhines v. Weber, 544 U.S. 269, 277 (2005), if he can show (i) good cause for his failure earlier to exhaust the unexhausted claims in state court; (ii) the unexhausted claims are not plainly meritless; and (iii) he has not engaged in abusive litigation tactics or intentional delay;
(4) Petitioner's failure to comply with this Order may result in the dismissal of the Petition and this action based upon the "mixed" nature of the Petition, petitioner's failure to comply with this Order, and/or petitioner's failure to prosecute; and
(5) The Court defers ruling on the Motion to Dismiss until petitioner elects one of the foregoing options or the expiration of the deadline to do so.
IT IS SO FOUND AND ORDERED. DATED: July 30, 2018.
/s/_________
HONORABLE S. JAMES OTERO
UNITED STATES DISTRICT JUDGE