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Houk v. Walker

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 3, 2008

LARRY N. HOUK, PETITIONER,
v.
JIMMY WALKER, WARDEN, RESPONDENT.

ORDER

On May 20, 2008, petitioner filed an application for a writ of habeas corpus. Therein, petitioner challenged a judgment of conviction entered in the Yuba County Superior Court in 2005. Petitioner's single claim was that he was denied his constitutional right to effective assistance of counsel because his trial attorney failed to move to suppress evidence found in petitioner's truck on the grounds that his arrest and the search of his vehicle were not supported by probable cause. Petitioner also filed a request for a stay and abeyance.

On May 28, 2008, the court denied petitioner's request for a stay because that request as presented was vague and conclusory and did not satisfy the requirements of Rhines v. Weber, 544 U.S. 269 (2005). The court granted petitioner thirty days leave to file a renewed motion for a stay and abeyance.

On June 17, 2008, petitioner filed a document styled "Motion to Amend Petition to Include Unexhausted Claims and Motion for a Stay." Therein, petitioner listed six grounds for relief, none of which have been exhausted in state court and argued that he has shown good cause under Rhines for the granting of a stay and abeyance. On July 1, 2008, the court ordered respondent to file an opposition or a statement of non-opposition to petitioner's renewed motion for a stay and abeyance. On July 28, 2008, respondent filed a statement of non-opposition to petitioner's renewed motion for a stay and abeyance.

On August 6, 2008, the court granted petitioner's motion to amend his petition and granted him thirty days leave to file an amended petition that included all of his claims. The court informed petitioner that, upon receipt and review of the amended petition, the court would issue a further order, granting petitioner's renewed motion for a stay and abeyance and instructing petitioner how to proceed. On August 21, 2008, petitioner filed an amended petition.

Good cause appearing, petitioner's renewed motion for a stay and abeyance will be granted. See Rhines, 544 U.S. at 277 (district court has discretion to stay a federal habeas proceeding to allow a petitioner to present unexhausted claims to the state court where there is good cause for the petitioner's failure to exhaust all claims in state court before filing a federal habeas petition); Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000) (authorizing district courts to stay fully exhausted federal petitions pending exhaustion of other claims); Calderon v. United States Dist. Court (Taylor), 134 F.3d 981, 987-88 (9th Cir. 1998); Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005) ("Rhines concluded that a district court has discretion to stay a mixed petition to allow a petitioner time to return to state court to present unexhausted claims."). However, petitioner is advised that federal proceedings may not be stayed indefinitely. See Rhines, 544 U.S. at 277-78. Accordingly, reasonable time limits will be imposed on petitioner's return to state court to exhaust his claims. Id.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's June 17, 2008 renewed motion for a stay and abeyance (Doc. No. 4) is granted;

2. Petitioner is ordered to present all unexhausted claims to the California Supreme Court in a state habeas corpus petition to be filed within thirty days from the date of this order;

3. This action is stayed and the Clerk of the Court is directed to administratively close the case;

4. Petitioner is ordered to file and serve a status report in this case on the first court day of each month; and

5. Petitioner is ordered to file and serve a motion to lift the stay of this action, along with a proposed second amended petition containing only exhausted claims, within thirty days after petitioner is served with the California Supreme Court's order disposing of the state exhaustion petition.

20080903

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