1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TYRONE WILLIAMS, No. 1:24-cv-00129-KES-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING CLERK OF 14 v. COURT TO ENTER JUDGMENT AND CLOSE CASE, AND DECLINING TO ISSUE 15 CERTIFICATE OF APPEALABILITY

16 Docs. 1, 6 PEOPLE OF THE STATE OF 17 CALIFORNIA, ORDER DENYING MOTIONS TO STAY

18 Respondent. Docs. 7, 12, 14, 16 19 20 Petitioner Tyrone Williams is a state prisoner proceeding pro se and in forma pauperis 21 with a petition for writ of habeas corpus pursuant to

. This matter was referred 22 to a United States Magistrate Judge pursuant to

(b)(1)(B) and Local Rule 302. 23 On January 31, 2024, the assigned magistrate judge issued findings and recommendations 24 to dismiss the petition as unexhausted. Doc. 6. Those findings and recommendations were 25 served upon all parties and contained notice that any objections thereto were to be filed within 26 twenty-one (21) days after service. On February 15, 2024, petitioner filed objections to the 27 findings and recommendations, requesting that the court stay his federal petition pending 28 exhaustion of state remedies. Doc. 7. 1 Thereafter, petitioner filed two motions on March 21, 2024, and another motion on 2 November 19, 2024, each of which requests a stay. Docs. 12, 14, 16. In Mena v. Long, the Ninth 3 Circuit held “that a district court has the discretion to stay and hold in abeyance fully unexhausted 4 petitions under the circumstances set forth in Rhines [v. Weber,

(2005)].”

, 910–11 (9th Cir. 2016). However, the Supreme Court has held that this discretion is 6 circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996, Rhines,

277, and a petition should be stayed only when “the petitioner had good cause for his failure to 8 exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the 9 petitioner engaged in intentionally dilatory litigation tactics.” Mena,

. 10 In this case, petitioner has failed to show good cause for a stay. In his objections and 11 three subsequent motions, he does not attempt to establish good cause. See Docs. 7, 12, 14, 16. 12 He contends that the prison refused to send out his mail from January 8, 2024, to January 25, 13 2024. Doc. 7 at 1. However, he fails to explain how this could have interfered with his ability to 14 exhaust his claims in the state courts before filing his federal petition, which he filed on 15 January 29, 2024. Doc. 1. 16 A petition containing both exhausted and unexhausted claims may be stayed pursuant to 17 the procedure set forth by the Ninth Circuit in Kelly v. Small,

(9th Cir. 2003). 18 Under this three-step procedure: (1) the petitioner files an amended petition deleting the 19 unexhausted claims; (2) the district court stays and holds in abeyance the fully exhausted petition; 20 and (3) the petitioner later amends the petition to include the newly exhausted claims. See King v. 21 Ryan,

(9th Cir. 2009). A Kelly stay does not require a finding of good 22 cause.

. However, a Kelly stay is unavailable in this case because none of the claims 23 in the petition are exhausted. 24 In accordance with the provisions of

(b)(1), the Court has conducted a de 25 novo review of the case. Having carefully reviewed the file, the Court concludes that the findings 26 and recommendations are supported by the record and proper analysis. 27 Having found that petitioner is not entitled to habeas relief, the Court now turns to 28 whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 1 | has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is 2 | allowed only in certain circumstances. Miller-El v. Cockrell,

(2003); 28 3 | U.S.C. § 2253. Where, as here, the Court denies habeas relief on procedural grounds without 4 | reaching the underlying constitutional claims, the court should issue a certificate of appealability 5 | jurists of reason would find it debatable whether the petition states a valid claim of the denial 6 | of a constitutional right and that jurists of reason would find it debatable whether the district court 7 || was correct in its procedural ruling.” Slack v. McDaniel,

(2000). “Where a 8 | plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a 9 | reasonable jurist could not conclude either that the district court erred in dismissing the petition or 10 | that the petitioner should be allowed to proceed further.” Jd. 11 In the present case, the Court finds that reasonable jurists would not find the determination 12 | that the petition should be dismissed debatable, wrong, or that the petition is deserving of 13 | encouragement to proceed further. Therefore, the Court declines to issue a certificate of 14 | appealability. 15 Accordingly, 16 1. The findings and recommendations issued on January 31, 2024, Doc. 6, are 17 adopted in full; 18 2. The petition for writ of habeas corpus is dismissed; 19 3, The motions to stay, Docs. 12, 14, 16, are denied; 20 3. The Clerk of Court is directed to enter judgment and close the case; and 21 4. The Court declines to issue a certificate of appealability. 22 23 94 | □□ □□ SO ORDERED. _ 25 Dated: _ December 13, 2024 4h UNITED STATES DISTRICT JUDGE

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