(DP) McWhorter v. Davis

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA RICHARD ALLEN McWHORTER, Case No. 1:20-cv-00215-JLT 12 Petitioner, DEATH PENALTY CASE 13 v. SCHEDULING ORDER RON BROOMFIELD, Warden of California State Prison at San Quentin, Respondent.1 17 On October 17, 2023, counsel for Petitioner Saor Stetler and Kresta Daly, and counsel for Respondent Deputy Attorney General Brook Bennigson, filed their joint case management statement regarding post-petition scheduling (Doc. 73), pursuant to the Court’s order of September 18, 2023 (Doc. 72). Therein, counsel state their respective positions on the exhaustion status of the amended habeas corpus petition filed in this proceeding on May 15, 2023 pursuant to 28 U.S.C. § 2254. Counsel also propose further scheduling for Petitioner’s anticipated motion to stay this proceeding pursuant to Rhines v. Weber, 544 U.S. 269 (2005), and hold it in abeyance of exhaustion proceedings in state court.

25 The Court, having reviewed the joint statement, and the record, finds good cause to provide further scheduling, as discussed below.

1 Pursuant to Federal Rule of Civil Procedure 25(d), Ron Broomfield, Warden of San Quentin State Prison, is 1 Counsel agree that Claims 1-4, 6-16, 18-21, 23, and 27 are fully exhausted, and that | Claims 5, 17, 22, 24 and 25 are not fully exhausted. Counsel disagree on the exhaustion status | of Claim 26. Petitioner asserts that Claim 26 is fully exhausted. Respondent asserts that Claim | 26 is not fully exhausted.

5 Counsel do not seek, and the Court will not now provide a determination of Claim | exhaustion status, or related scheduling. See e.g., Lucas v. Davis, No. 15CV1224-GPC | WVG), 2017 WL 1807907, at *10-11 (S.D. Cal. May 5, 2017) (petitioner is not dilatory under | Rhines in waiting for the federal court to rule on exhaustion before filing a petition in state | court); Leonard v. Davis, No. 2:17-CV-0796-JAM-AC DP, 2019 WL 1772390, at *5 (E.D.

10 | Cal. Apr. 23, 2019), report and recommendation adopted, 2019 WL 2162980 (E.D. Cal. May | 17, 2019) (same).

12 Counsel stipulate to a proposed schedule for Petitioner to seek stay and abeyance of this | proceeding pursuant to Rhines. The Court finds good cause to provide further scheduling that | includes counsel’s agreed upon timelines.

15 ACCORDINGLY, Petitioner shall file a motion for stay and abeyance of this | proceeding pursuant to Rhines, by not later than SIXTY (60) DAYS following issuance of this | order. Respondent shall file a response to that motion by not later than SIXTY (60) DAYS | following filing of the motion. Petitioner shall file any reply to Respondent’s response by not | later than THIRTY (30) DAYS following filing of the response. The matter will then be | deemed submitted and the parties will be notified by minute order if a hearing is necessary. If | Petitioner does not file a motion for stay and abeyance pursuant to Rhines by the deadline | provided above, or if that motion is denied, then the Court will set a case management | conference and/or provide further case scheduling.

95 IT IS SO ORDERED.

Dated: _ October 19, 2023 ears [Tourn TED STATES DISTRICT JUDGE