IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 11, 2008
PEDRO FERNANDEZ OROZCO, PETITIONER,
T. FELKER, WARDEN, RESPONDENT.
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2004 conviction for first degree murder and false imprisonment. A special circumstance of torture was found true with respect to the murder. In the May 27, 2008 petition, petitioner alleges that the special circumstance enhancement must be stayed because the special circumstance enhancement is to be considered an element of the greater offense of first degree murder. (Id.)
On August 28, 2008, petitioner filed a motion to hold the federal petition in abeyance while he exhausts his claims in state court.
The Supreme Court has confirmed the district court's discretion to stay a federal habeas proceeding. Rhines v. Weber, 544 U.S. 269, 277 (2005). The endorsed procedure allows 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. Rhines, 544 U.S. at 277; see also 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). The Supreme Court cautioned, however, that "stay and abeyance should be available only in limited circumstances" and that a stay "is only appropriate when the district court determines there is good cause for the petitioner's failure to exhaust his claims first in state court." Rhines, 544 U.S. at 277. Even if a petitioner shows good cause, the district court should not grant a stay if the unexhausted claims are plainly meritless. Id. Finally, federal proceedings may not be stayed indefinitely, and reasonable time limits must be imposed on a petitioner's return to state court to exhaust additional claims. Id. at 277-78.
Here, on August 28, 2008, respondent filed an answer, indicating that petitioner has exhausted his sole stated ground for relief in the instant petition. (Id. at 2.) Petitioner did not identify what claims he now seeks to exhaust in state court, nor did he explain why he failed to raise those claims at the time he exhausted the claim contained in the instant petition.
Therefore, petitioner's motion will be denied without prejudice to its renewal upon a proper showing. Should petitioner opt to renew his motion to stay, the motion must (1) show good cause for petitioner's failure to exhaust all claims prior to filing this action,*fn1 (2) identify petitioner's unexhausted claims and demonstrate that each is potentially meritorious, (3) describe the status of state court proceedings on the unexhausted claims, and (4) demonstrate that petitioner has acted with diligence in pursuing additional claims.*fn2 Respondents' opposition or non-opposition to petitioner's motion, and petitioner's reply, shall be filed in compliance with Local Rule 78-230(m).
Accordingly, IT IS HEREBY ORDERED that petitioner's August 28, 2008 motion to hold the petition in abeyance is denied without prejudice. (Docket No. 16.)