UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 15, 2011
JOHNNY LUGO IBARRA,
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER VACATING FINDINGS AND RECOMMENDATION ISSUED MARCH 3, 2011 AND GRANTING PETITIONER'S REQUEST TO STAY PETITION PURSUANT AND SETTING BRIEFING SCHEDULE [Doc. 24]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On March 3, 2011, the undersigned issued Findings and Recommendation that Respondent's motion to dismiss the instant petition as a mixed petition containing both exhausted and unexhausted claims be granted, unless Petitioner elects to dismiss the unexhausted claims.
On April 11, 2011, Petitioner filed a motion to stay and hold the petition in abeyance while he returns to state court to exhausted the unexhausted claims.
On May 3, 2011, the Court advised Petitioner that he had not made a sufficient showing to warrant a stay under Rhines v. Weber, 544 U.S. 269 (2005), but the Court could hold the petition in abeyance under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) if Petitioner so desired.
On June 6, 2011, Petitioner filed a response to the Court's May 3, 2011, order requesting that the Court hold the petition in abeyance pursuant to Kelly.
It is HEREBY ORDERED that:
1. Pursuant to the Court's May 3, 2011 order and Petitioner's response thereto, the Findings and Recommendation issued March 3, 2011 are VACATED;
2. Petitioner'S motion to stay is GRANTED and the unexhausted claims presented as Claims One through Nine in the original petition are stricken without prejudice and this action is administratively stayed pursuant to King;
3. Petitioner is DIRECTED to file a status report within thirty (30) days of the date of service of this order;
4. Petitioner is DIRECTED to file a new status report every thirty (30) days after filing his initial status report;
5. Petitioner is GRANTED thirty (30) days time following the final order of the state courts in which to advise this Court of the finality of the state proceedings and file an amended petition; and
6. Failure to comply with this order will result in the Court vacating the stay and proceeding with the action.
IT IS SO ORDERED.
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