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Larshin v. Lopez

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


May 21, 2010

ANDREY LARSHIN, PETITIONER,
v.
RAUL LOPEZ, RESPONDENT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding with retained counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On April 8, 2010, petitioner filed a petition containing one exhausted claim. On April 27, 2010, petitioner filed a motion to stay, pending exhaustion of a habeas petition that contains an unexhausted claim. However, petitioner's motion does not provide sufficient support to grant a stay nor does petitioner indicate the type of stay he requests. Petitioner's motion to stay is denied, but petitioner is granted leave to file a new motion for a stay within twenty-one days. If petitioner chooses to file a new motion for a stay, petitioner shall address the cases discussed below. The court also notes that the current petition only contains the one exhausted claim.

In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005) the United States Supreme Court found that a stay and abeyance of a mixed federal petition should be available only in the limited circumstance that good cause is shown for a failure to have first exhausted the claims in state court, that the claim or claims at issue potentially have merit and that there has been no indication that petitioner has been intentionally dilatory in pursuing the litigation. Rhines, supra, at 277-78, 125 S.Ct at 1535.

If petitioner wishes to stay this action, he shall file a motion addressing the Rhines factors. In the alternative, petitioner may proceed with a stay request as outlined in King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) citing Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003).

Accordingly, IT IS HEREBY ORDERED that petitioner's motion for a stay is denied without prejudice and petitioner may file a new motion to stay within twenty-one days from service of this order.

20100521

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