The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
? CENTRAL DISTRICT OF CALIFORNIA
LEVAR BROWN, Case No. CV 19-2293 VAP(JC)
Petitioner, (PROPOSED)
V. ORDER ACCEPTING FINDINGS,
13 CONCLUSIONS, AND
4p UNITED STATES MAGISTRATE
15 Respondent. JUDGE
16,
17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of
18 || Habeas Corpus (“Petition”), the submissions in connection with the Motion to
19 || Dismiss the Petition, and all of the records herein, including the September 6, 2019
20 || Report and Recommendation of United States Magistrate Judge (“Report and
21 || Recommendation”). The Court approves and accepts the Report and
22 || Recommendation.
23 THE COURT HEREBY FINDS:
24 (1) Ground Two of the Petition is unexhausted; and
25 (2) the Petition is “mixed”.
26 THE COURT HEREBY ORDERS:
27 (1) Petitioner shall elect one of the following options within 14 days of
28 the issuance of this Order:
1 (a) voluntarily dismiss the Petition without prejudice under Federal
2 Rule of Civil Procedure 41(a)(1), with the understanding that
3 any later petition may be time-barred under 28 U.S.C.
4 § 2244(d)(1);
5 (b) (i) file a first amended petition omitting the unexhausted claim
6 (Ground Two) and containing only the exhausted claim
7 (Ground One) or voluntarily dismiss the aforementioned
8 unexhausted claim from the instant Petition; and (i1) elect to
9 proceed only on the exhausted claim in the Petition/first
10 amended petition with the understanding that he thereby risks
11 forfeiting consideration of the unexhausted claim in federal
12 court, even if he subsequently does exhaust such claim;
13 (c) (i) file a first amended petition omitting the unexhausted claim
14 (Ground Two) and containing only the exhausted claim
15 (Ground One) or voluntarily dismiss the aforementioned
16 unexhausted claim from the instant Petition; and (11) seek a stay
17 of the then fully exhausted Petition/first amended petition under
18 Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) (as amended)
19 (allowing for stays of fully exhausted federal petitions without
20 showing of good cause), with the understanding that he will be
21 allowed to amend the operative Petition/first amended petition
22 to add any newly exhausted claim only if such claim is timely
23 or “relates back” to the original exhausted claim (see Mayle v.
24 Felix, 545 U.S. 644, 664 (2005)); or
25 (d) request that the Petition, in its current “mixed” form, be stayed
26 pursuant to Rhines v. Weber, 544 U.S. 269, 277 (2005), if he
27 can show (1) good cause for his failure earlier to exhaust
28 Ground Two in state court; (11) Ground Two is not plainly
1 meritless; and (ili) he has not engaged in abusive litigation
2 tactics or intentional delay;
3 (4) Petitioner’s failure to comply with this Order may result in the
4 dismissal of the Petition and this action based upon the “mixed”
5 nature of the Petition, petitioner’s failure to comply with this
6 Order, and/or petitioner’s failure to prosecute; and
7 (5) The Court defers ruling on the Motion to Dismiss the Petition until
8 petitioner elects one of the foregoing options or the expiration of the
9 deadline to do so.
10 IT IS SO FOUND AND ORDERED.
11
12 | DATED: October 24, 2019
13
14 Vigencn Sam One ae
15 HONORABLE VIRGINIA A. PHILLIPS
6 CHIEF UNITED STATES DISTRICT JUDGE
17
18
19
20
21
22
23
24
25
26
27
28