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Buford v. Horel

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


April 24, 2009

TERRY D. BUFORD, PETITIONER,
v.
BOB HOREL, WARDEN, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the filing fee.

Petitioner has requested that the court stay these proceedings to allow him to pursue state remedies on the claim that the evidence was insufficient to support his convictions for willful and deliberate attempted murder of a fetus and conspiracy to murder a fetus, a claim which is currently pending in the California Supreme Court. He suggests he did not pursue this claim earlier because of trial and appellate counsel's ineffectiveness.

The court has the authority to stay a habeas petition so that the petitioner can exhaust state court remedies if the petitioner shows his claims are potentially meritorious and good cause for failure to exhaust earlier. Rhines v. Weber, 544 U.S. 269, 277 (2005). Petitioner has made a sufficient showing to justify the stay.

1. Petitioner's March 13, 2009 request for a stay (docket no. 6) is granted;

2. Within ninety days of the date of this order, petitioner shall file a status report on the progress of the state exhaustion petition;

3. If the state exhaustion proceeding is not completed within one hundred eighty days of the date of this order, petitioner shall file a second status report, and further reports at ninety day intervals until the exhaustion process is completed; and

4. Within thirty days of the California Supreme Court's resolution of the state action, petitioner shall file a motion to lift the stay together with either a motion to dismiss the action or a motion to file an amended petition or a request that the action proceed on the petition filed December 1, 2008.

20090424

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