(DP) McWhorter v. Davis ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD ALLEN McWHORTER, Case No. 1:20-cv-00215-JLT 12 Petitioner, DEATH PENALTY CASE 13 v. SCHEDULING ORDER 14 RON BROOMFIELD, Warden of California State Prison at San Quentin, 15 Respondent.1 16 17 On October 17, 2023, counsel for Petitioner Saor Stetler and Kresta Daly, and counsel 18 for Respondent Deputy Attorney General Brook Bennigson, filed their joint case management 19 statement regarding post-petition scheduling (Doc. 73), pursuant to the Court’s order of 20 September 18, 2023 (Doc. 72). Therein, counsel state their respective positions on the 21 exhaustion status of the amended habeas corpus petition filed in this proceeding on May 15, 22 2023 pursuant to 28 U.S.C. § 2254. Counsel also propose further scheduling for Petitioner’s 23 anticipated motion to stay this proceeding pursuant to Rhines v. Weber, 544 U.S. 269 (2005), 24 and hold it in abeyance of exhaustion proceedings in state court. 25 The Court, having reviewed the joint statement, and the record, finds good cause to 26 provide further scheduling, as discussed below. 27 1 Pursuant to Federal Rule of Civil Procedure 25(d), Ron Broomfield, Warden of San Quentin State Prison, is 1 Counsel agree that Claims 1-4, 6-16, 18-21, 23, and 27 are fully exhausted, and that 2 | Claims 5, 17, 22, 24 and 25 are not fully exhausted. Counsel disagree on the exhaustion status 3 | of Claim 26. Petitioner asserts that Claim 26 is fully exhausted. Respondent asserts that Claim 4 | 26 is not fully exhausted. 5 Counsel do not seek, and the Court will not now provide a determination of Claim 6 | exhaustion status, or related scheduling. See e.g., Lucas v. Davis, No. 15CV1224-GPC 7 | WVG), 2017 WL 1807907, at *10-11 (S.D. Cal. May 5, 2017) (petitioner is not dilatory under 8 | Rhines in waiting for the federal court to rule on exhaustion before filing a petition in state 9 | court); Leonard v. Davis, No. 2:17-CV-0796-JAM-AC DP, 2019 WL 1772390, at *5 (E.D. 10 | Cal. Apr. 23, 2019), report and recommendation adopted, 2019 WL 2162980 (E.D. Cal. May 11 | 17, 2019) (same). 12 Counsel stipulate to a proposed schedule for Petitioner to seek stay and abeyance of this 13 | proceeding pursuant to Rhines. The Court finds good cause to provide further scheduling that 14 | includes counsel’s agreed upon timelines. 15 ACCORDINGLY, Petitioner shall file a motion for stay and abeyance of this 16 | proceeding pursuant to Rhines, by not later than SIXTY (60) DAYS following issuance of this 17 | order. Respondent shall file a response to that motion by not later than SIXTY (60) DAYS 18 | following filing of the motion. Petitioner shall file any reply to Respondent’s response by not 19 | later than THIRTY (30) DAYS following filing of the response. The matter will then be 20 | deemed submitted and the parties will be notified by minute order if a hearing is necessary. If 21 | Petitioner does not file a motion for stay and abeyance pursuant to Rhines by the deadline 22 | provided above, or if that motion is denied, then the Court will set a case management 23 | conference and/or provide further case scheduling. 24 95 IT IS SO ORDERED. Dated: _ October 19, 2023 ears [Tourn TED STATES DISTRICT JUDGE 27 28