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Kottenbrook v. Solano C.S.P.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


October 30, 2009

CHRISTOPHER TOD KOTTENBROOK, PETITIONER,
v.
SOLANO C.S.P., RESPONDENT.

The opinion of the court was delivered by: J. Spencer Letts Senior United States District Judge

ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

On July 30, 2009, petitioner filed this federal petition for writ of habeas corpus. On September 28, 2009, he filed a motion seeking to dismiss his petition so that he might exhaust additional grounds for relief in the state courts. Consequently, on October 6, 2009, the magistrate judge issued a report and recommendation recommending dismissal without prejudice. On October 19, 2009, in lieu of objections, petitioner submitted a motion requesting to stay this matter and hold his petition in abeyance pending his efforts to exhaust.

DISCUSSION

According to the petition, a California jury convicted petitioner of second-degree murder in March 2008. The California Court of Appeal affirmed the conviction in full on April 22, 2008, and the state's supreme court denied the petition for review on June 25, 2008. ( See www.appellatecases.courtinfo.ca.gov, Supreme Court Case S163561.) In accordance with the statutory limitations period, his federal habeas petition was due 90 days later, on about September 23, 2008. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) (holding that "the period of 'direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the [ninety-day] period within which a petitioner can file a petition for writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition").

Petitioner has sufficient time to exhaust his state court remedies and to return to this court. See 28 U.S.C. § 2244(d)(2) (one-year period of limitation is tolled during the period of time in which a "properly filed" application for state post-conviction or other collateral review is pending). Consequently, a stay is not warranted at this time. King v. Ryan, 564 F.3d 1133, 1141 (9th Cir. 2009) (for a stay of an exhausted petition pending efforts to exhaust supplemental grounds, petitioner must show statute of limitations would make it "unlikely or impossible" for him to return and, when seeking to insert supplemental grounds untimely into petition, that all grounds share "common core" of fact).

Accordingly, IT IS ORDERED THAT:

1. The report and recommendation is accepted.

2. Judgment shall be entered consistent with this order.

3. The clerk shall serve this order and the judgment on all counsel or parties of record.

20091030

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