Opinion
No. 2:15-cv-01286-KJM-GGH
03-28-2016
KENNETH O. OWENS, Petitioner, v. PEOPLE OF THE STATE OF CALIFORNIA, et al., Respondents.
ORDER
On January 28, 2016, petitioner filed a letter that seemed to seek relief from the court's judgment dismissing the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 14. As a part of petitioner's motion, he requested reconsideration of the court's decision to deny his motion for a stay and abeyance. Id. On February 8, 2016, the undersigned recommended that petitioner's filing be denied to the extent it could be construed as a motion for relief from judgment. ECF No. 15. The court recommended that petitioner's motion be denied because the petition contained only unexhausted claims. Id. Accordingly, the court found that the petition could not be held in stay and abeyance in accordance with Rhines v. Weber, 544 U.S. 269 (2005) because Rhines stays are only available for mixed petitions. Id.
On February 17, 2016, the Ninth Circuit issued a decision holding that "a district court has the discretion to stay and hold in abeyance fully unexhausted petitions under the circumstances set forth in [Rhines v. Weber, 544 U.S. 269 (2005)]." Mena v. Long, 813 F.3d 907 (9th Cir. 2016). On March 21, 2016, the presiding district judge declined to adopt the undersigned's recommendations because of the Ninth Circuit's holding in Mena. ECF No. 16. Instead, the district judge instructed the undersigned to reconsider petitioner's motion in light of Mena. Id. In accordance with the district judge's order, the court will give petitioner the opportunity to file a second motion for relief from judgment taking Mena's recent holding into consideration. If petitioner does not file a second motion within thirty days of its service, the court will reconsider his existing motion for relief from judgment (ECF No. 14) in light of Mena. Petitioner is advised that he must show good cause for the belated exhaustion of presently unexhausted claims he now desires to pursue.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner shall file a second motion for relief from judgment, if any, within thirty days of the service of this order. Dated: March 28, 2016
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE /GGH17; owen1286.rerecon