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Robinson v. Small

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


September 23, 2010

LARRY ROBINSON, PETITIONER,
v.
LARRY SMALL, RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254, together with an application to proceed in forma pauperis and a motion asking the court to stay this case and hold his claims in abeyance pending exhaustion of three of the eight claims presented in the petition.

Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).*fn1

A district court has discretion to "stay and abey" a "mixed" habeas petition containing exhausted and unexhausted claims. Rhines v. Weber, 544 U.S. 269, 276-77 (2005). The stay allows petitioners to "return[] to state court to exhaust their previously unexhausted claims [and] come back to federal court to present their perfected petitions...." Id. at 274. Stay and abeyance is appropriate only where there is good cause for petitioner's failure to exhaust all his claims in the first instance, where the claims are not plainly meritless, and there is no indication that the petitioner engaged in intentionally dilatory tactics. Id. at 277-78. Here, the court finds all three conditions are present. The motion will be granted, and petitioner will notify the court of the outcome of his state court proceedings no later than thirty days after his currently unexhausted claims have been exhausted.*fn2

Petitioner's motion for a stay also asks the court to "provide that once he has exhausted the three claims in state court, petitioner can file a second amended petition in this action that includes the newly-exhausted claims, which will then be exhausted and fully briefed." Motion at 11. This requested relief is not necessary: the original petition already presents the three unexhausted claims, petitioner has not filed an amended petition, and the court has not ordered respondent to answer or otherwise respond to the original pleading. Therefore, Federal Rule of Civil of Procedure 15(a)(1), which allows for the amendment of pleadings "as a matter of course" in certain circumstances, applies.*fn3 That part of his request is moot.

Accordingly, IT IS HEREBY ORDERED that:

1. The motion to proceed in forma pauperis (Docket No. 5) is granted.

2. Petitioner's additional motions to proceed in forma pauperis (Docket No. 8), for extensions of time in which to file additional in forma pauperis applications (Docket Nos. 10, 12 and 13) and to compel CDCR to certify his application (Docket No. 11) are denied as moot.

3. The motion to stay proceedings pending exhaustion of state court remedies (Docket No. 7) is granted. Insofar as petitioner seeks leave to file an amended petition at a later date, that request is denied as moot.

4. Petitioner shall notify the court of the outcome of his proceedings in state court no later than thirty days after his currently unexhausted claims have been exhausted.


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