IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
May 10, 2011
GREG LEWIS, WARDEN, PELICAN BAY STATE PRISON DEFENDANT.
The opinion of the court was delivered by: Richard Seeborg United States District Judge
ORDER REQUIRING ELECTION
This is a federal habeas corpus action filed by a state prisoner pursuant to 28 U.S.C. § 2254.
The petition acknowledges that petitioner has not exhausted his state remedies as to three of the 23 eight claims presented. In response to an order requiring him to elect among (1) dismissing the 24 petition pending exhaustion; (2) proceeding with the exhausted claims only; or (3) moving to stay the petition, pending exhaustion, Petitioner has sought a stay.
As explained in Rhines v. Webber, 544 U.S. 269 (2005), a stay is
appropriate when the
district court determines there was good cause for the petitioner's
failure to exhaust his claims first 28 in state court, the claims are
not meritless, and there are no intentionally dilatory litigation
the petitioner. 544 U.S. at 277--78. If the stay is granted, the
petitioner does not have to worry that 2 his newly-exhausted claims
will be barred by the statute of limitations because those claims
remain 3 pending in federal court. King v. Ryan, 564 F.3d 1133, 1139,
1140. (9th Cir. 2009).
Here, Petitioner has adequately shown cause for his failure to exhaust the claims in issue, in that they arise from alleged ineffective assistance of state-appointed counsel on direct appeal. As Petitioner has also shown that the claims are not meritless for purposes of evaluating a motion for 7 stay, and that there is no indication of dilatory tactics or motives, his motion to stay is granted.
Nothing further will take place in this action absent order of the Court, or until Petitioner exhausts 9 the unexhausted claims and, within thirty days of doing so, moves to reopen this action, and lift the 10 stay.*fn1 For the foregoing reasons, the above-titled action is hereby stayed until Petitioner files a motion to reopen as described above. The Clerk shall administratively close the file, and terminate Docket No. 3.
IT IS SO ORDERED.