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Nghiem D. Dang v. L.S. Mcewan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 31, 2011

NGHIEM D. DANG,
PETITIONER,
v.
L.S. MCEWAN, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: U.S. Magistrate Judge Hon. William V. Gallo

ORDER SETTING BRIEFING SCHEDULE ON MOTION FOR STAY AND ABEYANCE

On July 28, 2011, Petitioner, proceeding pro se, submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 along with a Motion to Stay the proceedings. In accordance with Rule 4 of the rules governing petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and upon a preliminary review of the Petition and Petitioner's Motion for Stay, IT IS ORDERED that:

1. The Clerk of this Court shall promptly (a) serve a copy of the Petition, the Motion for Stay, and a copy of this Order on the Attorney General for the State of California, or his authorized agent; and (b) serve a copy of this Order on Petitioner.

2. Petitioner shall file, no later than December 2, 2011, a document entitled "Supplemental Motion for Stay and Abeyance." In this document, Petitioner shall address how he has satisfied the requirements for granting a stay and abeyance set forth by the United States Supreme Court in Rhines v. Weber, 544 U.S. 269 (2005). In Rhines, the Court stated that a petitioner must show he "had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Id. at 278;

3. Respondent may file, no later than December 23, 2011, an Opposition to Petitioner's Motion for Stay and Abeyance addressing whether Petitioner meets the standard set forth in Rhines; and

4. Petitioner may file, no later than January 13, 2012, a Reply to Respondent's Opposition.

IT IS SO ORDERED.

20111031

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