(HC) Stewart v. Covello

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES RANANDO STEWART, JR., No. 2:25-cv-0819 CKD P 12 Petitioner, 13 v. ORDER AND 14 PATRICK COVELLO, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner, a California prisoner, has filed a petition for a writ of habeas corpus under 28 18 U.S.C. § 2254. Petitioner has paid the filing fee. 19 Petitioner requests that this action be stayed under Rhines v. Weber, 544 U.S. 269 (2005) 20 while he exhausts state court remedies with respect to claims 2, 3 and 4. In order to obtain a stay 21 under Rhines, petitioner must show (1) good cause for his failure to previously exhaust state court 22 remedies, and (2) any unexhausted claim is potentially meritorious. Rhines v. Weber, 544 U.S. at 23 278. Since petitioner makes no attempt to satisfy the first requirement, he is not entitled to a stay 24 under Rhines 25 Alternatively, petitioner asks that this matter be stayed pursuant to Kelly v. Small, 315 26 F.3d 1063 (9th Cir. 2003) which does not require a showing of good cause for failure to 27 previously exhaust. Good cause appearing, the court will recommend that this request be granted. 28 ///// ] Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district 2 || court judge to this case. 3 IT IS HEREBY RECOMMENDED that: 4 1. Petitioner’s request for a stay under Rhines v. Weber, 544 U.S. 269 (2005) be denied. 5 2. Petitioner’s request for a stay under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) be 6 || granted. 7 3. Petitioner’s petition for a writ of habeas corpus be dismissed with leave to file an 8 | amended petition. In the amended petition, petitioner should omit claims 2, 3 and 4. 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, petitioner may file written 12 || objections with the court. Such a document should be captioned “Objections to Magistrate 13 || Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections 14 || within the specified time may waive the right to appeal the District Court’s order. Martinez v. 15 Yist, 951 F.2d 1153 (9th Cir. 1991). 16 | Dated: March 16, 2025 / ae / a Ly a "7 CAROLYNK.DELANEY 18 UNITED STATES MAGISTRATE JUDGE 19 20

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES RANANDO STEWART, JR., No. 2:25-cv-00819-DC-CKD (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 PATRICK COVELLO, (Doc. No. 8) 15 Respondent.

16 17 Petitioner Charles Ranando Stewart, Jr. is a state prisoner proceeding with counsel with a 18 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a 19 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On March 12, 2025, Petitioner filed a motion for stay and abeyance under Kelly v. Small, 21 315 F.3d 1063 (9th Cir. 2002), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 22 (9th Cir. 2007), or in the alternative, for stay and abeyance under Rhines v. Weber, 544 U.S. 269 23 (2005), because his petition contained unexhausted claims pending state court review. (Doc. No. 24 2.) On April 14, 2025, Petitioner filed a first amended petition for writ of habeas corpus, in which 25 he no longer pleads the three claims from his original petition that are unexhausted and pending 26 state court review. (Doc. No. 7.) 27 On April 14, 2025, the assigned magistrate judge issued findings and recommendations 28 recommending that Petitioner’s request for a stay under Kelly be granted and that this action be 1 stayed while he exhausts state court remedies with respect to the three unexhausted claims . (Doc. 2 No. 8.) The magistrate judge also recommended Petitioner’s request for a stay under Rhines be 3 denied as moot because his amended petition no longer contained unexhausted claims. (Id.) The 4 findings and recommendations were served on Petitioner and contained notice that any objections 5 thereto were to be filed within fourteen (14) days from the date of service. (Id. at 2.) On April 28, 6 2025, Petitioner filed a response to the magistrate judge’s findings and recommendations noting 7 that he did not oppose the proposed recommendations. (Doc. No. 10.) 8 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 9 de novo review of the case. Having carefully reviewed the entire file, the court finds the findings 10 and recommendations to be supported by the record and by proper analysis. 11 Accordingly, 12 1. The findings and recommendations issued on April 14, 2025 (Doc. No. 8) are 13 ADOPTED in full; 14 2. Petitioner’s motion for a stay pending exhaustion of state court remedies under 15 Rhines v. Weber, 544 U.S. 269 (2005) (Doc. No. 2) is DENIED as moot; 16 3. Petitioner’s motion for a stay pending exhaustion of state court remedies under 17 Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) (Doc. No. 2) is GRANTED and this 18 action is STAYED and held in abeyance pending exhaustion of state court 19 remedies; 20 4. Petitioner is directed to file a status report within ninety (90) days of the date of 21 entry of this order, and every 90 days thereafter, advising the court of what steps 22 he has taken to exhaust his claims in state court; 23 5. Within thirty (30) days after the state court issues a final order resolving the 24 unexhausted claims, Petitioner shall file a motion to lift the stay and, if he wishes 25 to pursue newly exhausted claims in this federal habeas action, Petitioner shall also 26 file a second amended federal petition setting forth all exhausted claims; and 27 ///// 28 ///// 1 6. This action is referred back to the magistrate judge for proceedings consistent with 2 this order. 3 4 IT IS SO ORDERED. 5 | Dated: _ June 24, 2025 EIU os Dena Coggins 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 CHARLES RANANDO STEWART, JR., No. 2:25-cv-0819 DC CKD P

12 Petitioner,

13 v. ORDER AND

14 PATRICK COVELLO, FINDINGS AND RECOMMENDATIONS

15 Respondent.

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17 Petitioner, a California prisoner, has filed an amended petition for a writ of habeas corpus

18 under 28 U.S.C. § 2254 and asks that the petition be stayed pursuant to Kelly v. Small, 315 F.3d

19 1063 (9th Cir. 2003) while he exhausts state court remedies with respect to claims not appearing

20 in the amended petition. Good cause appearing, the court will recommend that this request be

21 granted.

22 Petitioner’s request for a stay under Rhines v. Weber, 544 U.S. 269 (2005) is rendered

23 moot by the filing of the amended petition. Under Rhines, the court can stay a petition with

24 unexhausted claims. Because the amended petition does not contain unexhausted claims, a

25 Rhines stay is not appropriate.

26 Accordingly, IT IS HEREBY ORDERED that petitioner’s original petition for a writ of

27 habeas corpus is dismissed and this action proceeds on the amended petition filed April 11, 2025.

28 /////

1 IT IS HEREBY RECOMMENDED that:

2 1. Petitioner’s request for a stay under Rhines v. Weber, 544 U.S. 269 (2005) be denied

3 || as moot.

4 2. Petitioner’s request for a stay under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003)

5 || (ECF No. 2) be granted.

6 These findings and recommendations are submitted to the United States District Judge

7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

8 | after being served with these findings and recommendations, petitioner may file written

9 || objections with the court. Such a document should be captioned “Objections to Magistrate

10 || Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections

11 || within the specified time may waive the right to appeal the District Court’s order. Martinez v.

12 | Yist, 951 F.2d 1153 (9th Cir. 1991).

13 | Dated: April 14, 2025 / 20 } if | Ld a

4 CAROLYN K DELANEY

15 UNITED STATES MAGISTRATE JUDGE

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8 UNITED STATES DISTRICT COURT

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11 CHARLES RANANDO STEWART, JR., No. 2:25-cv-0819 CKD P

12 Petitioner,

13 v. ORDER

14 PATRICK COVELLO,

15 Respondent.

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17 On March 17, 2025, the court recommended that petitioner’s request for a stay under

18 Rhines v. Weber, 544 U.S. 269 (2005) be denied, petitioner’s request for a stay under Kelly v.

19 Small, 315 F.3d 1063 (9th Cir. 2003) be granted, and that petitioner’s petition for a writ of habeas

20 corpus be dismissed with leave to file an amended petition. In objections to the findings and

21 recommendations, petitioner indicates that he would prefer to file his amended petition before the

22 original is dismissed.1 Good cause appearing, IT IS HEREBY ORDERED that:

23 1. The court’s March 17, 2025, findings and recommendations are vacated; and

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1 Petitioner prefers this approach as he feels dismissal of the original petition before the filing of

27 the amended may have an adverse impact on him in terms of the running of the applicable

limitations period. The court makes no representation herein as to anything concerning the

28 running of the limitations period.

] 2. Petitioner is granted 14 days within which to file an amended petition for writ of

2 | habeas corpus omitting claims 2, 3 and 4 in the original petition. Once the amended petition is

3 || filed, the court will address petitioner’s motion for a stay.

4 || Dated: March 31, 2025 Card it | i a la f pa

5 CAROLYN K DELANEY?

6 UNITED STATES MAGISTRATE JUDGE

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