IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 17, 2008
STACEY DYER, PETITIONER,
TINA HORNBEAK, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner, a state prisoner at Valley State Prison for Women filed a document styled "Motion to Toll Time for Writ of Habeas Corpus." On October 6, 2008, the court issued an order stating that in order to commence an action, petitioner must file a petition for writ of habeas corpus as required by Rule 3 of the Rules Governing Section 2254 cases. The court granted petitioner thirty days to file a habeas corpus petition that complies with the requirements of the Rules Governing Section 2254 Cases, the Federal Rules of Civil Procedure and the Local Rules of Practice.
On October 30, 2008, petitioner filed a response to the October 6, 2008, order. Petitioner states that she cannot comply with this order because she has a habeas petition pending in state court. Petitioner states that she will refile her petition once her claims are exhausted in state court.
Prisoners may file a "protective petition" in federal court asking the court to stay and abey the federal proceedings until state remedies are exhausted. Pace v. DiGuglielmo, 514 U.S. 408 (2005). In other words, if some of petitioner's claims are exhausted, petitioner may file a mixed petition containing both her exhausted and unexhausted claims. See Rhines v. Weber, 544 U.S. 269, 277 (2005). If petitioner believes that the statute of limitations may run before her claims are exhausted, see 28 U.S.C. § 2244(d)(statute of limitations), she may file a protective petition, assuming some of her claims are exhausted.
Accordingly, IT IS HEREBY ORDERED that petitioner is granted thirty days from the date of this order to file a habeas corpus petition in accordance with the terms set forth above; if petitioner does not respond to this order, the court will recommend dismissal of this action.
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