(HC) Henson v. Matterson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARCUS HENSON JR., No. 2:22-cv-0712 KJM CKD P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 GISELLE MATTERSON, 15 Respondent. 16 17 Petitioner is a California prisoner proceeding pro se with a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Respondent’s answer was filed on July 21, 2022. Shortly 19 after the answer was filed, petitioner filed a motion asking that his petition be stayed so that he 20 can pursue claims other than the ones identified in his habeas petition in California courts. The 21 court presumes that if petitioner does not succeed on his claims in California courts, he will seek 22 to add at least one of those claims to the claims already before this court. 23 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 24 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). In Kelly v. Small, 315 F.3d 1063, 1070-71 (9th 25 Cir. 2003), the Ninth Circuit found district courts have the discretion to stay a petition containing 26 claims where state court remedies have been exhausted, such as the petition currently before this 27 court, while the petitioner attempts to exhaust state court remedies with respect to other claims. 28 While the court will recommend that petitioner’s request for a stay be granted under Kelly so that 1 | petitioner may pursue other claims in California’s courts, petitioner is informed that a stay under 2 || Kelly does not serve to toll the applicable one-year limitations period as to any claims not already 3 || before the court and the court makes no representation as to whether such claims would be timely. 4 Accordingly, IT IS HEREBY RECOMMENDED that: 5 1. Petitioner’s motion for a stay (ECF No. 15) be granted; and 6 2. Petitioner’s petition for a writ of habeas corpus be stayed to permit petitioner the 7 || opportunity to pursue additional claims for relief in California courts. 8 These findings and recommendations are submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 10 || after being served with these findings and recommendations, any party may file written 11 || objections with the court and serve a copy on all parties. Such a document should be captioned 12 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 13 || objections shall be served and filed within fourteen days after service of the objections. The 14 | parties are advised that failure to file objections within the specified time may waive the right to 15 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 16 || Dated: September 6, 2022 fi 20 } Kt | / , a he "7 CAROLYNK.DELANEY 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 4 hens0712.sty 23 24 25 26 27 28