1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JOSE LUIS LARA, ) Case No.: 1:23-cv-01176-SKO (HC) 12 ) Petitioner, ) ORDER GRANTING MOTION FOR STAY AND 13 ) ABEYANCE v. ) 14 ) [THIRTY DAY DEADLINE] CHRISTIAN PFEIFFER, Acting Warden, ) 15 Respondent. ) ) 16 ) 17 18 Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28

. He is represented in this action by Aaron Spolin, Esq. On August 7, 2023, Petitioner 20 filed the instant petition for writ of habeas corpus challenging his 2019 conviction in Kern County 21 Superior Court for attempted murder, burglary, robbery, and assault with a firearm. (Doc. 1.) In 22 addition, he filed a motion for stay pursuant to Kelly v. Small,

(9th Cir. 2003). (Doc. 23 2.) As discussed below, the Court will grant a stay of proceedings. 24 DISCUSSION 25 I. Stay and Abeyance 26 A petition may be stayed pursuant to the procedure set forth by the Ninth Circuit in Kelly, 315

. Under this three-step procedure: 1) the petitioner files an amended petition deleting the 28 unexhausted claims; 2) the district court stays and holds in abeyance the fully exhausted petition; and 1 3) the petitioner later amends the petition to include the newly exhausted claims. See King v. Ryan, 2

(9th Cir. 2009). A Kelly stay does not require a finding of good cause.

at 3 1140. 4 Petitioner presents three grounds for relief: 1) He claims the People failed to present sufficient 5 evidence to sustain Petitioner’s robbery conviction; 2) He contends that counsel rendered ineffective 6 assistance; and 3) He claims the prosecution failed to disclose exculpatory evidence. Petitioner states 7 that Ground One is fully exhausted in the state courts. He also states that Ground Two, to the extent 8 he argued that trial counsel was ineffective for failing to request a pinpoint instruction on after-formed 9 intent (“Ground Two(A)”), was also exhausted in the state courts. Ground Two, to the extent he 10 contends that counsel was ineffective for failing to present a full and fair defense at trial (“Ground 11 Two(B)”), and Ground Three have not yet been exhausted in the state courts. Petitioner seeks to have 12 Grounds Two(B) and Three dismissed without prejudice, the case stayed pursuant to Kelly, and the 13 exhausted claims held in abeyance while he returns to state court to exhaust Grounds Two(B) and 14 Three. Following the Kelly procedure, the Court will grant a stay of the proceedings. 15 ORDER 16 Accordingly, IT IS HEREBY ORDERED: 17 1) Petitioner’s motion for stay is GRANTED; 18 2) Petitioner is DIRECTED to file an amended petition deleting the unexhausted claims 19 within thirty (30) days of the date of service of this order; 20 3) Petitioner is DIRECTED to file a status report within sixty (60) days of filing his amended 21 petition, and then every sixty (60) days thereafter; and 22 4) Following final action by the California Supreme Court, Petitioner is DIRECTED to notify 23 the Court by filing a motion to lift the stay along with an amended petition setting forth the 24 exhausted claims within thirty (30) days of the date of the California Supreme Court’s 25 decision. 26 27 IT IS SO ORDERED.

28 Dated: August 9, 2023 /s/ Sheila K. Oberto . 1 UNITED STATES MAGISTRATE JUDGE

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