Nicholas Ed Buskirk v. Patrick Covello

Summary

The United States District Court for the Central District of California accepts the magistrate judge’s Report and Recommendation and grants petitioner’s motion for a stay under Kelly v. Small. Claims Eight, Nine, and Ten are dismissed without prejudice, the fully exhausted petition and action are stayed pending exhaustion of those claims, and the court imposes periodic reporting and other procedural requirements.

Holdings

1. The court granted a stay under the procedure recognized in Kelly v. Small, subject to specified conditions and limitations, so that Buskirk could exhaust Claims Eight, Nine, and Ten in state court.
2. Claims Eight, Nine, and Ten were dismissed without prejudice, and the resulting fully exhausted petition and action were stayed while Buskirk exhausted those claims.
3. Buskirk was required to file status reports every sixty days, notify the court of relevant state-court decisions within the specified thirty-day periods, and comply with the one-year limitations period under 28 U.S.C. § 2244(d)(1).

Questions Presented

1. Whether the court should stay the federal habeas action under Kelly v. Small while Buskirk exhausts Claims Eight, Nine, and Ten in state court.
2. Whether Claims Eight, Nine, and Ten should be dismissed without prejudice during the stay.
3. What conditions and reporting obligations should govern the stay.

Disposition

other