1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ELLIOT D. JACKSON, Case No. CV 19-5754 GW (PVC) 12 Petitioner,

ORDER ACCEPTING FINDINGS,

13 v. CONCLUSIONS AND

RECOMMENDATIONS OF UNITED

14 KELLY SANTORO, Warden, STATES MAGISTRATE JUDGE 15 Respondent. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Operative Petition, 18 Respondent’s Motion to Dismiss, all of the records and files herein, the Magistrate 19 Judge’s Report and Recommendation, and Petitioner’s Objections. After having made a 20 de novo determination of the portions of the Report and Recommendation to which 21 Objections were directed, the Court concurs with and accepts the findings and conclusions 22 of the Magistrate Judge. 23 24 In the Objections, Petitioner contends in part that his unexhausted claims should be 25 deemed technically exhausted because they are “procedurally barred under state law” and 26 consequently, any attempt to present them to the California Supreme Court would be 27 futile. (Obj. at 3). This argument is unavailing. Petitioner has not conclusively 28 demonstrated that his claims would inevitably be subject to a procedural bar if he returned 1 to state court, and indeed, Petitioner has requested a stay for the very purpose of 2 exhausting his unexhausted claims. However, even assuming, without deciding, that 3 Petitioner is correct, “if a claim is unexhausted but state procedural rules would now bar 4 consideration of the claim, it is technically exhausted but will be deemed procedurally 5 defaulted unless the petitioner can show cause and prejudice.” Cooper v. Neven, 641 F.3d 6 322, 327 (9th Cir. 2011); see also Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A 7 claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies and the 8 court to which the petitioner would be required to present his claims in order to meet the 9 exhaustion requirement would now find the claims procedurally barred.’”) (quoting 10 Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)). Petitioner has not shown cause for 11 his failure to exhaust. Accordingly, even if the Court were to conclude that state court 12 review is no longer available for Petitioner’s unexhausted claims, federal review would 13 still be precluded because the claims are procedurally defaulted. 14 15 IT IS ORDERED that: 16 17 (1) Respondent’s Motion to Dismiss is granted. 18 19 (2) Petitioner’s request for a stay under either Rhines v. Weber, 544 U.S. 20 269 (2005), or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), 21 overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 22 1149 (9th Cir. 2007), is denied. 23 24 (3) Petitioner shall have thirty days from the date of this Order to 25 voluntarily dismiss his unexhausted claims in Grounds Three 26 through Six. A form order of dismissal is attached hereto for 27 Petitioner’s convenience. 28 1 (4) — If Petitioner timely dismisses Grounds Three through Six, 2 Respondent shall file an Answer to the exhausted claims in Grounds 3 One and Two within thirty days of the date of the dismissal. 4 5 (5) If Petitioner does not dismiss Grounds Three through Six by the 6 Court’s deadline, the Petition shall be denied as mixed and judgment 7 shall be entered dismissing this action without prejudice. 8 9 IT IS FURTHER ORDERED that the Clerk serve copies of this Order on Petitioner 10 || at his current address of record and on counsel for Respondent. 11 12 IT IS SO ORDERED. 13 14 || DATED: August 13, 2020 15 □□□ Ky

GEORGE H. WU

16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28