(HC) Jones v. Sullivan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CORNELIUS L. JONES, No. 2:19-cv-1160 WBS DB P 12 Petitioner, 13 v. ORDER 14 W. J. SULLIVAN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2014 convictions for attempted 19 murder, assault with a deadly weapon, and assault likely to cause great bodily injury. Presently 20 before the court is petitioner’s renewed motion for stay. (ECF No. 13.) 21 I. Motion for Stay 22 Petitioner initiated this action by filing the original petition on June 24, 2019. (ECF No. 23 1.) After filing the original petition, petitioner filed a motion to amend along with a proposed 24 amended petition. (ECF Nos. 6, 7.) The court granted the motion to amend and determined it 25 would screen the petition by separate order. (ECF No. 12.) 26 Thereafter, petitioner filed a motion seeking a stay pursuant to Rhines v. Weber, 544 U.S. 27 269 (2005). The court found that because the amended petition was fully exhausted, it could not 28 grant a stay pursuant to Rhines, but that a stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 1 | 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), may be 2 | appropriate. However, the court declined to impose a stay pursuant to Kelly without input from 3 | petitioner. Thus, the motion was denied without prejudice and petitioner was directed move for a 4 | stay pursuant to Kelly or amend the petition and seek a Rhines stay. 5 Petitioner has now filed a motion seeking a stay of this action pursuant to Kelly. (ECF 6 | No. 13.) The court has determined that it is necessary to hear from respondent before the court 7 | can rule on the motion for stay. 8 I. Conclusion 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Respondent is directed to file a response to petitioner’s motion for stay (ECF No. 13) 11 within thirty days from the date of this order. Respondent shall not file a response to the 12 petition at this time. 13 2. The Clerk of the Court is directed to serve a copy of this order, a copy of petitioner’s 14 motion for stay (ECF No. 13), the form Consent to Proceed Before a United States 15 Magistrate Judge, and a copy of the petition for writ of habeas corpus pursuant to 28 16 U.S.C. § 2254 on Tami Krenzin, Supervising Deputy Attorney General. 17 | Dated: January 21, 2020 18 19 20 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 DB:12 DB: 1/Orders/Prisoner/Habeas/jone 1 160.stay.resp 27 28