Sarmiento

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Jose Elias SARMIENTO, Case No.: 20-cv-0930-WQH-AGS Petitioner, REPORT AND RECOMMENDATION

TO GRANT IN PART AND DENY IN

v.

PART MOTION FOR STAY AND

Christian PFEIFFER, Warden, et al., ABEYANCE (ECF 4)

14 Respondents. 15 All parties agree that petitioner is entitled to stay these proceedings under Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir. 2002), overruled on other gds. by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007). The only dispute is whether he is also entitled to the stay he prefers under Rhines v. Weber, 544 U.S. 269, 278 (2005). BACKGROUND In this habeas action, petitioner Jose Sarmiento asserts three grounds for relief: (1) improper exclusion of testimony, (2) jury-instruction error, and (3) ineffective assistance of counsel. (ECF 3, at 6-8.) Sarmiento says that he exhausted remedies for the first two grounds in state court, but he is mistaken. (ECF 4, at 4.) Although his state 25…