(HC) Peterson v. Biter ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 KELVIN PETERSON, No. 2:16-cv-00251-TLN-DB 11 Petitioner, 12 v. ORDER 13 MARTIN BITER, 14 Respondent. 15 16 Petitioner is a state inmate proceeding pro se with a petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge 18 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On March 13, 2020, the magistrate judge assigned to this action issued findings and 20 recommendations recommending that the petition be denied. (ECF No. 20.) The findings and 21 recommendations were served on all parties and contained notice that any objections to the 22 findings and recommendations were to be filed within fourteen days. (Id.) 23 On March 20, 2020, Petitioner requested additional time to file objections to the findings 24 and recommendations due to the COVID-19 pandemic. (ECF No. 21.) Petitioner was given an 25 additional sixty days to file any objections. (ECF No. 22.) Those sixty days have now expired, 26 and Petitioner has not filed objections or requested additional time to do so. 27 Petitioner has, however, filed a motion for stay pursuant to Rhines v. Weber, 544 U.S. 269 28 (2005). (ECF No. 23.) Therein, Petitioner argues the Court should impose a stay so that he can 1 pursue a claim that trial counsel was ineffective in failing to investigate a possible insanity 2 defense. This claim was not included in the petition and has only now been alleged after the 3 magistrate judge issued the pending findings and recommendations. Moreover, the Petition 4 presented is wholly exhausted and therefore the Court cannot impose a stay pursuant to Rhines. 5 See Rhines, 544 U.S. at 277-78; Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005) (“Rhines 6 applies to stays of mixed petitions”); Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016). 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Petitioner’s Motion for Stay (ECF No. 23) is DENIED; 9 2. The findings and recommendations filed March 13, 2020 (ECF No. 20), are 10 ADOPTED IN FULL; 11 3. The petition for writ of habeas corpus is DENIED; and 12 4. The Court declines to issue the certificate of appealability in 28 U.S.C. § 2253. 13 IT IS SO ORDERED. 14 DATED: August 10, 2020 15 16 17 18 19 20 21 22 23 24 25 26 27 28