Case 2:21-cv-03284-VBF-JC Document 15 Filed 03/30/22 Page 1 of 3 Page ID #:1018

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE VALENCIA, ) Case No. 2:21-cv-03284-VBF-JC ) 12 ) Petitioner, ) 13 ) ORDER ACCEPTING FINDINGS, v. ) CONCLUSIONS, AND 14 ) RECOMMENDATIONS OF ) UNITED STATES MAGISTRATE 15 DANNY SAMUEL, Acting Warden, ) JUDGE ) 16 ) [DOCKET NO. 5] Respondent. ) 17 ________________________________ 18 Pursuant to

, the Court has reviewed the Petition for Writ of 19 Habeas Corpus by a Person in State Custody Under

and the 20 supporting memorandum (“Petition”), the parties’ submissions in connection with 21 petitioner’s Motion for Kelly1 Stay (“Stay Motion”), and all of the records herein, 22 including the November 8, 2021 Report and Recommendation of United States 23 Magistrate Judge (“Report and Recommendation”). The Court approves and 24 accepts the Report and Recommendation but notes on January 5, 2022 – after the 25 issuance of the Report and Recommendation – the California Court of Appeal, 26 27 1Kelly v. Small,

(9th Cir.), cert. denied,

(2003), overruled 28 in part by Robbins v. Carey,

(9th Cir. 2007). Case 2:21-cv-03284-VBF-JC Document 15 Filed 03/30/22 Page 2 of 3 Page ID #:1019

1 Second Appellate District, denied the previously pending petition for writ of 2 habeas corpus filed by petitioner’s counsel on petitioner’s behalf in such court. 3 See Docket in In re Jose Valencia on Habeas Corpus, Cal. Ct. App. Case. No. 4 B313249. The foregoing update does not alter the analysis in the Report and 5 Recommendation as petitioner has yet to present the claim asserted in Ground Six 6 of the Petition to the California Supreme Court, and it thus remains unexhausted. 7 IT IS THEREFORE ORDERED: 8 1. The Stay Motion is granted subject to the below-specified conditions/ 9 limitations. 10 2. Ground Six of the Petition is dismissed without prejudice. 11 3. The resulting fully exhausted Petition and this action are stayed 12 for petitioner to exhaust only the claim asserted in Ground Six. 13 4. Petitioner shall file periodic reports detailing the status of the 14 state court proceedings beginning sixty (60) days from the date of this Order and 15 every sixty (60) days thereafter. If petitioner has no new information regarding the 16 status of petitioner’s efforts to exhaust his state remedies in a given period because 17 a matter remains pending in state court, petitioner must nonetheless file a status 18 report advising the Court of such fact. 19 5. Petitioner shall, within thirty (30) days of any state decision 20 granting petitioner habeas relief or, if none, within thirty (30) days of the 21 California Supreme Court’s decision relative to a state habeas petition containing 22 the claim asserted in Ground Six, file a notice of such decision and attach as an 23 exhibit thereto, a copy of such decision. 24 6. Petitioner is cautioned that: 25 a) the failure to meet any of the time requirements set out 26 above shall result in an order vacating the stay, nunc pro tunc, may preclude 27 consideration of petitioner’s unexhausted claim, and may result in dismissal of 28 this action for lack of prosecution or failure to obey this Order; and 2 Case 2:21-cv-03284-VBF-JC Document 15 Filed 03/30/22 Page 3 of 3 Page ID #:1020

1 b) the granting of the Kelly stay in no way relieves petitioner 2 of the obligation to comply with the one-year statute of limitations under 3

(d)(1) and nothing in this Order should be construed to 4 suggest that the Court has made any determination as to whether it would 5 ultimately permit petitioner to amend the Petition to re-add Ground Six once 6 it has been exhausted. 7 7. Noting in this Order precludes respondent from raising procedural or 8 other objections/defenses to the Petition, any amended federal petition or any 9 claims contained therein. 10 8. The Clerk shall administratively close this case during the 11 pendency of the stay and remove this case from the Court’s active case load. 12 9. The Clerk shall serve copies of this Order on counsel for 13 petitioner and respondent. 14 IT IS SO ORDERED. 15 16 DATED: March 30, 2022 /S/ Valerie Baker Fairbank 17 ________________________________________ 18 HONORABLE VALERIE BAKER FAIRBANK SENIOR UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 3