(HC) Rackley v. Pollard ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LOY LOUIS RACKLEY, No. 2:21-cv-1784-EFB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 MARCUS POLLARD, Warden, 15 Respondent. 16 17 On October 12, 2021, the court ordered a response from respondent with respect to 18 petitioner’s filing of an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, 19 wherein counsel for petitioner sought a stay and abeyance, setting forth exhausted claims 20 concerning sufficiency of the evidence, with unexhausted claims pending in the California 21 Supreme Court. ECF No. 5. 22 Respondent does not oppose petitioner’s motion for a Rhines stay to exhaust the claims 23 that petitioner has already raised and is currently pursuing in state court. ECF No. 8. Good cause 24 appearing, petitioner’s motion for a stay and abeyance of the petition should be granted. Pursuant 25 to Rhines v. Weber, 544 U.S. 269 (2005), petitioner shall notify the court within thirty days of the 26 claims being exhausted. 27 ///// 28 ///// ] Accordingly, it is ORDERED that the Clerk of the Court shall randomly assign a United 2 || States District Judge to this action. 3 Further, it is RECOMMENDED that: 4 1. Petitioner’s motion to stay (ECF No. 4) be granted and a stay in this matter be 5 imposed pending exhaustion of petitioner’s state court remedies; and 6 2. Within thirty days of the final adjudication by the California Supreme Court of 7 petitioner's pending petition, petitioner be directed to inform this court so that the stay 8 may be lifted. 9 These findings and recommendations are submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 11 | after being served with these findings and recommendations, any party may file written 12 || objections with the court and serve a copy on all parties. Such a document should be captioned 13 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 14 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 15 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 16 | DATED: December 7, 2021. 17 Dot 7 See 4 18 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28