Opinion
CV-21-00471-PHX-GMS (DMF)
01-26-2022
Delbert Wauneka, Petitioner, v. David Shinn, et al., Respondents.
ORDER
G. Murray Snow Chief United States District Judge
Pending before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge Deborah M. Fine (Doc. 31) issued November 16, 2021, regarding Petitioner's Motion to Stay these proceedings pending Petitioner's second post-conviction relief (“PCR”) proceedings in state court (Doc. 25). The R&R recommends that this matter be stayed and held in abeyance pursuant to Rhines, 544 U.S. at 269, pending the completion of Petitioner's second PCR proceedings in state court.
The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R. (R&R at 6 (citing 28 U.S.C. § 636(b)(1); Rules 6, 72, Federal Rules of Civil Procedure). No. objections were filed.
In the Report and Recommendation's Analysis and Conclusion Section (Doc. 31, p. 5), the Court is advised Petitioner requests a stay pursuant to Rhines, Respondents do not oppose such a stay, and on the record before the Court, the Court found that Petitioner had met the criteria for a Rhines stay, including good cause, particularly given Respondents' position that Petitioner's double jeopardy claim being litigated in Petitioner's second PCR proceedings may not be procedurally barred in state court. 1
The parties have already been ordered to provide status updates to the Court at regular intervals regarding Petitioner's second PCR proceedings in state court (Doc. 30) so that this habeas matter may proceed again at the conclusion of such state court proceedings.
IT IS THEREFORE ORDERED that the Report and Recommendation of the Magistrate Judge (Doc. 31) is accepted.
IT IS FURTHER ORDERED that Petitioner's Motion to Stay these proceedings pending Petitioner's second PCR proceedings in state court be granted (Doc. 25) pending Petitioner's second PCR proceedings. 2