IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 16, 2009
GLEN CORNWELL, JR. PETITIONER,
ROBERT L. AYERS, JR. RESPONDENT.
The opinion of the court was delivered by: John A. Mendez United States District Judge
DEATH PENALTY CASE ORDER
On March 26, 2007, the assigned Magistrate Judge issued an Order and Findings and Recommendations concerning a stay in this death penalty action. The Magistrate Judge found that petitioner was bringing some unexhausted claims in a federal petition for writ of habeas corpus, which the magistrate judge characterized as a "protective petition" to avoid further running of the AEDPA statute of limitations. The Order part directed petitioner to add his unexhausted federal claims to a then pending state habeas petition, and do so forthwith regardless of any sought review of the Order/Findings and Recommendations with the district judge. Petitioner's counsel complied with the Order.
The magistrate judge also found and recommended that the federal petition, a mixed petition, be stayed pending completion of the state habeas proceedings. Respondent objected to the recommendation on April 14, 2007 on account of a perceived lack of good cause to permit a mixed petition to be stayed pending further exhaustion. See Rhines v. Weber, 544 U.S. 269 (2005). For reasons not known, the then assigned district judge did not rule on the objections. Thereafter, the case was assigned to a visiting judge, and finally to the undersigned on April 30, 2008. However, respondent's objections to the March 26 Order/Findings and Recommendations were not brought to the undersigned's attention. Thus, the federal petition has been de facto stayed since March 26, 2007.
On July 7, 2009, petitioner's counsel brought to the undersigned's attention that the objections remained outstanding, but also notified the court that one of the pending state petitions had been decided by the state supreme court on June 24, 2009.*fn1 Petitioner asked for clarification that a stay was indeed in effect.
Due to the procedural history, the court need not obtain a response to petitioner's Motion for Stay and For Clarification of Previous Stay of Proceedings. The undersigned has reviewed the March 26, 2007 Findings and Recommendations de novo. For the reasons stated therein, and the passage of time as explained above, the undersigned adopts the Findings and Recommendations in their entirety. The stay of these federal proceedings is now formally ordered. Petitioner's Motion for Stay and for Clarification etc. (Docket # 28) is denied as moot.
Petitioner and Respondent shall file a status report before the magistrate judge within sixty (60) days relating the status of the state habeas proceedings, and further contemplated proceedings in this federal action if the state action is finally resolved.
IT IS SO ORDERED.