(HC) Strong v. Foss ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER STRONG, No. 2:19-cv-01268 KJM GGH P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS RE RHINES STAY 14 TAMMY FOSS, 15 Respondent. 16 17 18 The undersigned will repeat the introduction to the Order to Show Cause previously 19 issued in order to give context to these Findings and Recommendations. 20 Petitioner has filed a traverse in this case which implicates exhaustion. That is, petitioner 21 is presently seeking relief in a case pending before the California Court of Appeal, in which he 22 seeks retroactive application of Cal. Penal Codes sections 188, 189. See Cal. Penal Code section 23 1170.95, permitting application of retroactive relief of the above sections in defined 24 circumstances. Specifically, petitioner seeks application of Cal. Penal Code section 189 which 25 restricts the formerly broader aspects of the felony murder rule. Because of the new statutory 26 sections and ongoing proceedings in state court, petitioner has opted not to brief his previous 27 //// 28 //// 1 contentions regarding application of the felony murder rule. The undersigned ordered the parties 2 to give their respective positions on the entry of a Rhines1 stay. 3 In the parties’ filings required by the OSC, respondent indicated that she did not believe a 4 federal claim was possible, but in the alternative, provided that she did not object to a Rhines 5 stay. Petitioner, while expressing some confusion as to the status of the appeal pending in the 6 California Court of Appeal, indicated that he was asking for the Rhines stay. 7 Given that respondent does not object to the requested Rhines stay, and the undersigned 8 being unwilling to foreclose at least an attempted statement of a new claim in the future, the 9 undersigned recommends that the Rhines stay be entered. 10 Accordingly, IT IS HEREBY RECOMMENDED that: 11 1. The case be stayed and the petition be held in abeyance pending full exhaustion in state 12 court; and 13 2. In the event these Findings and Recommendations are adopted, the parties shall file a 14 status report no later than six months after the adoption of these Findings and Recommendations 15 detailing the status of the state proceedings; or, if the state proceedings are finally resolved within 16 the six month period, petitioner shall file a request to lift the stay within fourteen days after final 17 resolution. Further orders will issue depending on the status of the state proceedings. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within seven days after 20 being served with these findings and recommendations, any party may file written objections with 21 the court and serve a copy on all parties. Such a document should be captioned “Objections to 22 Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be 23 served and filed within three days after service of the objections. The parties are advised that 24 //// 25 //// 26 //// 27 //// 28 1 Rhines v. Weber, 544 U.S. 269 (2005). 1 failure to file objections within the specified time may waive the right to appeal the District 2 Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).2 3 Dated: February 27, 2020 /s/ Gregory G. Hollows 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 The shortened time for objections and reply is given in that the parties do not presently object to 28 the Rhines stay.