The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus. The petition raises two claims: 1) jury instruction error; and 2) ineffective assistance of counsel. The petition states that the ineffective assistance of counsel claim is not exhausted. On March 10, 2009, the court ordered petitioner to file either a motion to hold proceedings in abeyance or statement of abandonment of the unexhausted claim. On April 6, 2009, petitioner filed a motion to stay this action.
District courts have the authority to stay a mixed habeas petition and hold it in abeyance pending the exhaustion of the unexhausted claims. Rhines v. Weber, 544 U.S. 269, 278 (2005). The discretion is not unfettered, but, as the Supreme Court has stated, "it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Additionally, the Supreme Court has recommended that "[a] prisoner seeking state post-conviction relief might avoid [having a court find the petition time-barred] by filing a 'protective' petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted." Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)(citing Rhines, 544 U.S. at 276).
In the instant case, petitioner has filed a protective petition. Because petitioner's unexhausted claims do not appear to be unmeritorious and there is no indication that petitioner has engaged in intentionally dilatory tactics, the court recommends that the motion to stay be granted.
Accordingly, IT IS HEREBY RECOMMENDED that petitioner's April 6, 2009, motion to stay (# 8) be granted; this action be administratively stayed pending petitioner's exhaustion of additional claims; petitioner be required to advise the court within thirty days of completion of exhaustion.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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