(HC) Poslof v. Attchley

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA LONNIE LEE POSLOF, JR., ) Case No.: 1:21-cv-0339 JLT HBK (HC) ) 12 Petitioner, ) ORDER ADOPTING THE FINDINGS AND ) RECOMMENDATIONS AND DENYING 13 v. ) PETITIONER’S MOTION FOR STAY AND ) ABEYANCE M. ATTCHLEY, Warden, ) ) (Docs. 28, 32) 15 Respondent. ) ) 16 ) 17 Lonnie Lee Poslof, Jr., a state prisoner, is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) Petitioner seeks stay of “all proceedings in this action” under the doctrine articulated in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), asserting there is an action pending in Merced County Superior Court involving “identical issues to those involved in this action.” (Doc. 28 at 1-2.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

23 The assigned magistrate judge observed that Petitioner initiated this action with the filing of his complaint on February 5, 2021; Respondent filed an answer on July 2, 2021; and Petitioner filed his traverse on July 2, 2021. (Doc. 32 at 2.) Thus, the magistrate judge noted the matter was fully briefed, and Petitioner did not seek a stay for “more than three years” in the action. (Id.) The magistrate judge found “Petitioner seeks to add new grounds” to his Petition, which “is not a mixed petition” because all claims alleged in it were exhausted. (Id. at 2-3.) To the extent Petitioner relied upon the abstention doctrine of Younger v. Harris, 401 U.S. 37, 44 (1971) and the Rooker-Feldman doctrine to support his request for a stay, the magistrate judge found the doctrines were inapplicable because Petitioner’s conviction is final and “the Rooker-Feldman doctrine is inapplicable to cases seeking habeas corpus relief.” (Id. at 3-4, citation omitted.)

5 Further, the magistrate judge found “any new claims would now be time-barred under AEDPA’s limitations period,” and Petitioner failed to identify any new claims that related back to the exhausted claims in the Petition pending before the Court. (Id. at 4-6.) Therefore, the magistrate judge recommended the motion to stay under Kelly be denied. (Id. at 6.)

9 Petitioner filed objections to the Findings and Recommendations, generally arguing that the new claims he seeks to exhaust relate back to the grounds already raised in his Petition regarding “the trial court’s error of admitting [an] unauthenticated letter.” (Doc. 35 at 2.)

12 Petitioner also references a “mixed” state habeas petition filed on September 24, 2023 “with some new evidence claims as well as old but not properly argued by his [appellate] counsel.” (Id.) However, as determined by the magistrate judge, any new claims Petitioner seeks to exhaust are time-barred absent any applicable statutory or equitable tolling. (Doc. 32 at 4-5.) Petitioner does not make any argument as to any applicable tolling that would extend the long-since expired limitations period, nor does Petitioner specifically identify the new claims he seeks to exhaust for the Court to determine whether they relate back to the grounds for relief in his Petition. Finally, as determined by the magistrate judge, to the extent the Court can discern the new claims Petitioner wishes to exhaust, they do not relate back to the exhausted claims. (Id. at 6.)

21 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case.

22 Having carefully reviewed the matter, including Petitioner’s objections, the Court concludes the Findings and Recommendations are supported by the record and proper analysis.

24 Having found Petitioner is not entitled to the relief requested, the Court must determine whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253.

28 Generally, the court may only issue a certificate of appealability “if jurists of reason could | disagree with the district court’s resolution of [the petitioner’s] constitutional claims or that jurists | could conclude the issues presented are adequate to deserve encouragement to proceed further.”

3 | Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While Petitioner is not | required to prove the merits of his case, he must demonstrate “something more than the absence | of frivolity or the existence of mere good faith on his... part.” Miller-El, 537 U.S. at 338. The | Court finds that reasonable jurists would not find the determination that the stay be denied | debatable or wrong, or that issues presented are deserving of encouragement to proceed further.

8 | Petitioner has not made the required substantial showing of the denial of a constitutional right.

9 | Therefore, the Court declines to issue a certificate of appealability. Thus, the Court ORDERS: 10 1. The Findings and Recommendations issued on November 15, 2024, (Doc. 32), are 11 ADOPTED in full.

12 2. Petitioner’s motion to stay (Doc. 28) is DENIED.

13 3. The habeas action SHALL proceed on the claims raised in the Petition.

14 4. The matter is referred to the magistrate judge for further proceedings.

15 5. The Court declines to issue a certificate of appealability.

16 | IT IS SO ORDERED.

Dated: _December 22, 2024 Charis [Tourn 18 TED STATES DISTRICT JUDGE