(HC) Cry v. Horn

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA KAVON WILLIAM CRY, No. 2:24-cv-0921 TLN AC P 12 Petitioner, 13 v. ORDER TAMMY L. CAMPBELL, 15 Respondent.

17 Petitioner is a state prisoner proceeding pro se on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently pending before the court are respondent’s1 motion to dismiss the petition as partially unexhausted and petitioner’s motion to stay. ECF Nos. 15, 17.

20 Federal courts are barred from adjudicating mixed petitions for habeas corpus, which are petitions containing both exhausted and unexhausted claims. Rhines, 544 U.S. at 273. A petitioner satisfies the exhaustion requirement by fairly presenting his federal claims to the highest state court before presenting them to the federal court. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citations omitted). Respondent asserts that Claims One through Three are unexhausted, ECF No. 15, which petitioner concedes, ECF No. 17 at 1; ECF No. 20 at 1. Review of the instant 1 Respondent requests that Patwin Horn, the warden of Kern Valley State Prison, be substituted as respondent in this case. ECF No. 15 at 1 n.1. The request will be granted, and the Clerk of the Court will be directed to update the docket accordingly.

1 | petition and petitioner’s state supreme court petitions also confirms that Claims One through || Three were unexhausted at the time of filing. Compare ECF No. 5 with ECF Nos. 13-3, 13-6.

3 || However, it has come to the court’s attention that petitioner filed a petition for writ of habeas | corpus in the California Supreme Court on April 18, 2025, and that petition was denied on July | 30, 2025.7 It therefore appears that the currently pending motions may be moot. However, || because the court is unable to determine the claims raised in the state petition or the grounds for || denial, the parties will be required to submit supplemental briefing.

8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Respondent’s request to substitute (ECF No. 15 at 1 n.1) is GRANTED. Patwin Horn, || the warden at Kern Valley State Prison, is substituted as respondent and the Clerk of the Court is || directed to update the docket accordingly.

12 2. Within thirty days of the service of this order, petitioner shall file a supplemental brief || that addresses whether California Supreme Court Case No. S290401 exhausts Claims One | through Three of the petition and attaches copies of the California Supreme Court petition and the || order denying the petition. In the event petitioner does not file a supplemental brief, the court || will assume that Case No. S290401 was unrelated to Claims One through Three.

17 3. Respondent may file a reply within twenty-one days of the filing of petitioner’s || supplemental brief.

19 | DATED: August 4, 2025 ~ Ctt10 Lhar—e_ 20 ALLISONCLAIRE. SS 21 UNITED STATES MAGISTRATE JUDGE 26 See Docket for California Supreme Court Case No. 8290401, || https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=3129008&doc_n o=S290401 &request_token=NilwLSEnTkw3WzBJSCJdWEpIOFg0UDxTKiJeVzpTICAgCg%3 | D%3D [https://perma.cc/H2KM-JZPM].