Ndoh

(HC) Rubio v. Ndoh

Good Law
United States District Court, Eastern District of CaliforniaMarch 23, 20201:20-cv-00085California916 words

Opinion

Trial Court Opinion

Discussion 26 In his request for clarification, petitioner states that he does not understand the procedural 27 process of a Kelly stay, the relevant type of stay in petitioner’s case. See ECF No. 5 at 2; Kelly v. 28 Small, 315 F.3d 1063, 1070-71 (9th Cir. 2002). Thus, we provide petitioner with the following explanation of the Kelly stay procedure. Under Kelly, a case moves through three stages: first, the petitioner amends his petition to delete any unexhausted claims; second, the court, in its discretion, stays the amended, fully- exhausted petition, and holds it in abeyance while the petitioner has the opportunity to proceed to state court to exhaust the deleted claims; and third, once the deleted claims have been exhausted in state court, the petitioner may return to federal court and amend his federal petition, adding the newly-exhausted claims. See Kelly, 315 F.3d at 1070-71 (citing Calderon v. U.S. Dist. Court (Taylor), 134 F.3d 981, 986 (9th Cir. 1998)). Here, petitioner has filed a petition with two fully exhausted claims and seeks a stay and abeyance of his petition to exhaust a third claim, ineffective assistance of…

Sign in to read the full opinion

Create a free account to read the complete opinion text, citation history, and good-law status for this case.