(HC) Thomas v. Warden of Folsom State Prison

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA WILLIAM HENRY THOMAS, No. 2:23-cv-02741-DAD-EFB (HC) 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS WARDEN OF FOLSOM STATE PRISON, Respondent.

Petitioner, a state prisoner proceeding without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254, ECF No. 6, has yet to pay the filing fee or seek leave to proceed in forma pauperis. The court ordered him to do one or the other by September 6, 2024.1 ECF No. 7.

Petitioner has requested that the court stay this action during the pendency of state “1172” proceedings.2 ECF No. 3.

Where there is no chance that a petitioner’s federal habeas claims will be litigated in pending California Penal Code § 1172.6 proceedings, a district court has discretion to stay the federal case until the resolution of the § 1172.6 proceedings. Duke v. Gastelo, 64 F.4th 1088, Once the filing fee is paid or leave to proceed in forma pauperis is granted, the court will screen the petition to determine whether service on respondent is appropriate.

2 The amended petition indicates that petitioner is referring to resentencing proceedings under California Penal Code § 1172.6. ECF No. 6 at 9-10.

1 | 1099 (9th Cir. 2023). Here, petitioner indicates that one of his claims (Claim Three, concerning || “instructional error”) is implicated in the § 1172.6 proceedings. ECF No. 6 at 9-10. It is | therefore not clear whether the case may be stayed under Duke or whether abstention under || Younger v. Harris, 401 U.S. 37 (1971) is appropriate instead.

5 Due to the complexity of the issue, the undersigned recommends that the court deny the | motion to stay without prejudice to its renewal after the court has ordered service of the petition | on the respondent, so that respondent may argue for or against the proposed stay.

8 Accordingly, it is hereby RECOMMENDED that petitioner’s December 8, 2023 motion to | stay (ECF No. 3) be DENIED without prejudice to its renewal after the court has directed service | of the petition on respondent.

11 These findings and recommendations are submitted to the United States District Judge | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days | after being served with these findings and recommendations, any party may file written | objections with the court and serve a copy on all parties. Such a document should be captioned | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the | objections shall be filed and served within fourteen days after service of the objections. The || parties are advised that failure to file objections within the specified time may waive the right to || appeal the District Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).

20 || Dated: August 15, 2024 Zael "Ulhiza CLACAW, 21 GRITED BATHS HEACHNTRATE JUDGE