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Jeffrey A. Pate v. Warden Martell

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


July 13, 2011

JEFFREY A. PATE, PETITIONER,
v.
WARDEN MARTELL, RESPONDENT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Petitioner is a state prisoner proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the original petition filed June 11, 2010, which raises one claim: ineffective assistance of appellate counsel. In the answer filed March 24, 2011, respondent argues that this claim is not exhausted but should nevertheless be denied on the merits. See 28 U.S.C. § 2254(a)(2) (a habeas petition may be denied on the merits, notwithstanding the failure of the applicant to exhaust available remedies).

In the reply to the answer filed June 14, 2011, petitioner requests that this action be stayed so that he may return to state court and exhaust his unexhausted claim.*fn1 The court does not have the authority to stay a petition containing only unexhausted claims. See Rhines v. Weber, 544 U.S. 268, 277 (2005) (district courts have limited discretion to hold in abeyance a mixed habeas petition, that is, one containing both exhausted and unexhausted claims); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) (three step procedure for staying an action where some claims are exhausted). For this reason, petitioner's request to stay this action is denied.

Because this action cannot be stayed, petitioner has two options. He may either proceed with the instant action with his unexhausted claim or he may voluntarily dismiss this action and return to state court and exhaust this claim. If petitioner dismisses this action and returns to state court, he should be mindful of the statute of limitations which may bar any future habeas petition filed in federal court. See 28 U.S.C. § 2244(d)(1) (one year statute of limitations applies to habeas corpus petitions filed pursuant to 28 U.S.C. § 2254).

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's request to stay this action contained in his reply to respondent's answer is denied;

2. Within twenty-one days of the date of this order, petitioner shall file either a motion to voluntarily dismiss the instant action or a notice stating that he wishes to proceed with the instant action.

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