(HC) Feci v. Burton ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES MICHAEL FECI, No. 2:20-cv-00878-KJM-CKD P 12 Petitioner, 13 v. ORDER 14 ROBERT BURTON, 15 Respondent. 16 17 Petitioner is a state inmate proceeding pro se in this habeas corpus action filed pursuant to 18 28 U.S.C. § 2254. On January 26, 2021, petitioner filed a motion to amend and a request to lift 19 the stay and abeyance of this case. ECF No. 33. The court will deny this motion as premature 20 because the October 30, 2020 Findings and Recommendations are still pending review by the 21 district court judge assigned to this case. ECF No. 26. As a result, no claims have been formally 22 dismissed that need to be amended back into the habeas petition upon their proper exhaustion in 23 state court. Nor has a stay of this case been entered. 24 Additionally, the court notes that the exhibits attached to petitioner’s motion do not 25 establish that claims two and four have been properly exhausted in the California Supreme Court 26 as the petition for review was returned unfiled. See Artuz v. Bennett, 531 U.S. 4 (2000) 27 (explaining in the context of the statute of limitations that “an application is ‘properly filed’ when 28 its delivery and acceptance are in compliance with the applicable laws and rules governing 1 | filings”). Nothing in this order precludes petitioner from filing a habeas corpus petition in the 2 | California Supreme Court in order to properly exhaust claims two and four while the district court 3 | judge reviews the pending Findings and Recommendations. 4 Accordingly, IT IS HEREBY ORDERED that petitioner’s motion to amend the habeas 5 | petition and lift the stay and abeyance of this case (ECF No. 33) is denied as premature. 6 | Dated: February 10, 2021 bh adj ke / nx 7 CAROLYN K. DELANEY : g UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 12/feci0878.motion2amend.premature.docx 15 16 17 18 19 20 21 22 23 24 25 26 27 28