United States District Court, N.D. California
August 2, 2004.
LARRY PAGE, Petitioner,
DAVID L. RUNNELS, warden, Respondent.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER FOR STAY AND TO ADMINISTRATIVELY CLOSE THE CASE
Petitioner filed a pro se petition for a writ of habeas
corpus under 28 U.S.C. § 2254 challenging his conviction in the
Santa Clara County Superior Court. Upon initial review, the court
noted that the petition appeared to have a problem in that
petitioner indicated he wanted to present a claim to this court
that had not been presented first to the California Supreme Court
for its consideration. The court required petitioner to choose
how he wanted to cure the problem of the unexhausted claim.
Petitioner elected to request a stay of the proceedings while he
exhausts his unexhausted claim in the California Supreme Court.
(Docket # 7.)
Petitioner's request for a stay is GRANTED. See Olvera v.
Giurbino, 371 F.3d 569, 473-74 (9th Cir. 2004); Kelly v.
Small, 315 F.3d 1063, 1070 (9th Cir. 2003). This action is
STAYED, and the action is ADMINISTRATIVELY CLOSED. Nothing
further will take place in this action until petitioner exhausts
the unexhausted claim, and, within thirty days of doing so, moves
to reopen the action, lift the court's stay and amend the stayed
petition to add the newly-exhausted claim. If petitioner does not
return within thirty days of exhausting the unexhausted claims,
the action may be dismissed. See id. at 1071 (indicating that
thirty days is sufficient time for a petitioner to return to federal court
following final action by the state courts).
Petitioner also applied for an enlargement of time to file his
election. The application is DENIED as unnecessary. (Docket #8.)
Petitioner filed an election to request the stay eleven days
before he sought an enlargement of time.
IT IS SO ORDERED.
© 1992-2004 VersusLaw Inc.