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Stayer v. McDonald

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 5, 2010

TIMOTHY STAYER, PETITIONER,
v.
M. MCDONALD, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the undersigned is petitioner's unopposed January 21, 2010, motion to stay pending exhaustion of an unexhausted claim. For the following reasons, petitioner's motion should be granted.

Petitioner seeks to stay this action pursuant to the procedures set forth in King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). Petitioner has filed an amended petition containing only his exhausted claims. In the motion to stay, petitioner alleges that his amended petition was timely. Petitioner alleges that he seeks to add his currently unexhausted claim within the limitations period, after the claim is exhausted, because the limitations period is tolled while petitioner's state habeas is pending. Petitioner, through counsel, has calculated the number of days in which the soon-to-be exhausted claim must be filed in federal court after the ruling of the state supreme court. Petitioner's unopposed motion should be granted.*fn1

Accordingly, IT IS HEREBY RECOMMENDED that petitioner's January 21, 2010, motion to stay (no. 24) be granted and this action be administratively stayed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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