UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
October 7, 2011
GEORGE T. MUNOZ,
SUSAN L. HUBBARD, WARDEN, ET AL.,
The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge
ORDER SETTING BRIEFING SCHEDULE ON MOTION FOR STAY AND ABEYANCE
Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, accompanied by a Motion for stay and abeyance. Petitioner indicates that he currently has pending in state court a claim alleging ineffective assistance of counsel regarding DNA issues, and requests a stay of this action until he has completed exhaustion of that claim. (Doc. No. 4 at 1.)
In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005) the Supreme Court held that "a stay and abeyance 'should be available only in limited circumstances,' and is appropriate only when the district court determines that there was 'good cause' for the failure to exhaust." Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005) (quoting Rhines, 125 S.Ct. at 1535). Petitioner is required to demonstrate there are arguably meritorious claims which he wishes to return to state court to exhaust and that he is diligently pursuing his state court remedies with respect to those claims. Jackson, 425 F.3d at 661; Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000).
Petitioner has alleged that he is currently exhausting an ineffective assistance of counsel claim based on counsel's failure to conduct DNA testing, and that he was delayed in presenting the claim to the state court because he had to await a ruling on a "P.C. 1405 motion." (Pet.'s Motion at 1.) Respondent, if opposing the motion, should address whether Petitioner has adequately alleged an arguably meritorious claim and whether he has shown good cause for any delay.
CONCLUSION AND ORDER
IT IS ORDERED that Respondent shall file a response to the Motion for stay and abeyance no later than November 14, 2011, and Petitioner shall file his reply, if any, to the Respondent's brief no later than November 28, 2011.
IT IS SO ORDERED.
K:\COMMON\GALLO\CASES\CASES11\MUNOZ - Habe\Stay & Abey Sched Order 10 7.wpd, 10711
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