(HC) Walker v. Hixton

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA TYRONE WALKER, No. 2:23-cv-02711-DAD-SCR (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING A. HIXTON, PETITIONER’S MOTION FOR A STAY UNDER RHINES v. WEBER, AND 15 Respondent. GRANTING MOTION FOR A STAY AND ABEYANCE UNDER KELLY v. SMALL (Doc. Nos. 2, 13) 18 Petitioner Tyrone Walker is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

21 On June 28, 2024, the previously assigned magistrate judge issued findings and recommendations recommending that: (i) the operative first amended petition for federal habeas relief be dismissed because it is a mixed petition, containing both an exhausted claim and an unexhausted claim; (ii) petitioner’s motion for stay and abeyance (Doc. No. 2) be denied under the procedure of Rhines v. Weber, 544 U.S. 269 (2005), for lack of good cause shown, but that petitioner’s motion be granted under the procedure of Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) overruled on other grounds by Robbins v. Carrey, 481 F.3d 1143 (9th Cir. 2007); and (iii) petitioner be directed to file an amended federal habeas petition which deletes petitioner’s unexhausted claim and presents only petitioner’s exhausted claim. (Doc. No. 13.) The pending findings and recommendations were served on petitioner and contained notice that any objections thereto were to be filed within twenty-one (21) days after service. (Id. at 8.) To date, no objections have been filed and the time in which to do so has now passed.

5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, the court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court concludes that the findings and recommendations are supported by the record and proper analysis.

9 Accordingly: 10 1. The findings and recommendations issued on June 28, 2024 (Doc. No. 13) are 11 adopted in full; 12 2. Petitioner’s operative first amended federal habeas petition (Doc. No. 10) is 13 dismissed; 14 3. Petitioner’s motion for a stay and abeyance under Rhines v. Weber, 544 U.S. 269 15 (2005) (Doc. No. 2) is denied; 16 4. Petitioner’s motion for a stay and abeyance under Kelly v. Small, 315 F.3d 1063 17 (9th Cir. 2003) (Doc. No. 2) is granted; 18 5. Within thirty (30) days from the date of this order, petitioner shall file a second 19 amended federal habeas petition that deletes his unexhausted claim (ineffective 20 assistance of counsel) and presents only his exhausted claim; 21 6. Once the second amended federal petition is filed, this action shall be stayed 22 pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other 23 grounds by Robbins v. Carrey, 481 F.3d 1143 (9th Cir. 2007), to allow petitioner 24 an opportunity to complete exhaustion of his ineffective assistance claim in state 25 court; 26 7. Petitioner is directed to file a status report within ninety (90) days of the date of 27 entry of this order advising the court the status of the state court proceedings, and 28 shall file an additional status report every ninety (90) days thereafter; 1 8. Within thirty (30) days after the state court issues a final order resolving the 2 unexhausted claims, petitioner shall file a motion to lift the stay and, if he wishes 3 to pursue the newly exhausted claim in this federal habeas action, petitioner shall 4 also file a motion for leave to file a second amended federal petition setting forth 5 all exhausted claims; and 6 9. This action is referred back to the magistrate judge for proceedings consistent with 7 this order.

8 IT IS SO ORDERED. ” | Dated: _ August 14, 2024 Dab A. 2, sxe 10 DALE A. DROZD UNITED STATES DISTRICT JUDGE