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Carranza v. Walker

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


May 12, 2009

FRANCISCO JAVIER CARRANZA, PETITIONER,
v.
JAMES WALKER, RESPONDENT.

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 3, 2009, the court informed petitioner that his petition contains some claims for which petitioner has not exhausted state court remedies. Petitioner was instructed to either inform the court that he desires to proceed on his exhausted claims or file a motion for a stay so that he can return to the California Supreme Court and exhaust state court remedies with respect to all of his claims. Petitioner filed a motion for a stay on April 30, 2009.

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 failed to provide any explanation as to why he did not exhaust state court remedies with respect to all of his claims earlier. Therefore, the court will recommend that petitioner's motion for a stay be denied and respondent be directed to respond to the claims identified as claims 1-4 in petitioner's petition for writ of habeas corpus.

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Petitioner's motion for a stay (#8) be denied;

2. The claims identified as claims 5 and 6 in petitioner's petition for writ of habeas corpus be dismissed for failure to exhaust state court remedies; and

3. Respondent be directed to file his response to claims 1-4 in petitioner's application for writ of habeas corpus within thirty days of adoption of the foregoing findings and recommendations.

20090512

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