Contreras v. Montgomery

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA ANTHONY L. CONTRERAS, Case No.: 16cv2813-BTM-LL 12 Petitioner, ORDER: v. WARREN L. MONTGOMERY, (1) ADOPTING THE FINDINGS AND Warden, CONCLUSIONS OF UNITED STATES Respondent. MAGISTRATE JUDGE; (2) DENYING MOTION TO DISMISS PETITION FOR A WRIT OF HABEAS 18 CORPUS; and, (3) ISSUING STAY AND ABEYANCE 21 Petitioner Anthony L. Contreras is a state prisoner proceeding pro se and in forma pauperis with a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his San Diego County Superior Court convictions for attempted premeditated murder and shooting at an occupied vehicle, with firearm and criminal street gang enhancements, for which he is serving an indeterminate sentence of life in prison plus a determinate sentence of 25 years to life. (ECF No. 1 at 1-2; ECF No. 19-1 at 2.)

27 Respondent has filed Motion to Dismiss the Petition, contending it contains both exhausted and unexhausted claims. (ECF No. 18.) Petitioner has filed an Opposition contending he first became aware his petition contains unexhausted claims when he received Respondent’s Motion to Dismiss. He requests a stay and abeyance as an alternate to dismissal. (ECF No. 22.)

4 The United States Magistrate Judge has filed a thorough and well-reasoned Report and Recommendation (“R&R”) which recommends the Motion to Dismiss be denied and this action stayed while Petitioner returns to the state supreme court to exhaust his unexhausted claims. No party has filed Objections to the R&R. 8 The Court has reviewed the R&R and ADOPTS in full the findings and conclusions of the Magistrate Judge. For the reasons set forth in the R&R, the Court DENIES Respondent’s Motion to Dismiss and ISSUES a stay and abeyance. The denial of the Motion to Dismiss is without prejudice to Respondent to raise any procedural defenses after Petitioner has completed exhaustion. Petitioner shall follow the schedule set forth below: 14 1. If Petitioner wants to try to exhaust the unexhausted claims he raised in the original habeas petitions he filed in the San Diego Superior Court and the California Court of Appeal, he must file a habeas petition with the California Supreme Court no later than March 31, 2020. Petitioner is forewarned that any claims raised in a new habeas petition filed in the California Supreme Court MUST be the same as the claims he previously included in the original habeas petitions he filed in the San Diego Superior Court and the California Court of Appeal and may not include any new legal theories.

21 2. When and if Petitioner receives notice that the California Supreme Court has accepted a new habeas petition for filing, he must promptly and without delay provide this Court with notice of the filing and a copy of the newly filed petition. If Petitioner fails to provide the Court with prompt notice and a copy of any new filing in the California Supreme Court, petitioner is forewarned that his entire Petition is subject to dismissal as a mixed petition under Rose v. Lundy, 455 U.S. 509, 522 (1982). Notice will be considered prompt if it is mailed to the Court within 15 days after Petitioner receives notice from the California Supreme Court that his new petition was accepted for filing.

1 3. If Petitioner files a new petition in the California Supreme Court, he must ||promptly mail his Amended Federal Petition that only includes exhausted claims to this ||Court within 30 days of receipt of the California Supreme Court’s ruling on his new || petition.

5 4. Alternatively, Petitioner may elect to abandon the unexhausted claims in his || Federal Petition and proceed with his currently exhausted claims by filing an amended || petition that only includes his currently exhausted claims. If Petitioner elects to abandon 8 unexhausted claims and proceed only on his currently exhausted claims, he is required || to file his amended petition by March 31, 2020.

10 IT IS SO ORDERED.

11 j || DATED: February 25, 2020 Tid. Meth, 3 BARRY TED MOSKOWITZ UNITED STATES DISTRICT JUDGE