The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner, proceeding with counsel, with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In response to petitioner's motion to stay this action (Dkt. No. 2), filed contemporaneously with his initial petition (Dkt. No. 1), this court, on January 9, 2012, directed petitioner to file an amended "mixed" petition for writ of habeas corpus that clearly distinguished between petitioner's exhausted and unexhausted claims, and directed respondent to thereafter comment on petitioner's stay request. (Dkt. No. 5.) On January 30, 2012, petitioner filed a First Amended Petition for Writ of Habeas Corpus (Dkt. No. 7), and a renewed request to stay this action (Dkt. No. 8); on February 24, 2012, respondent filed a Statement of Non-Opposition to petitioner's stay request.
The amended petition clearly identifies petitioner's exhausted and unexhausted claims. Petitioner asserts that his unexhausted claims (set forth at pp. 15-16 of the petition), each of which is premised on alleged ineffective assistance of counsel, were discovered pursuant to petitioner's post-conviction investigation, which concluded in October 2011, the month before petitioner commenced this action.
The court finds that petitioner has demonstrated good cause for failing to earlier exhaust the subject claims in the state courts. Therefore, pursuant to Rhines v. Weber, 544 U.S. 269 (2005), petitioner has adequately supported his request to "stay and abey" his amended "mixed" habeas petition pending the exhaustion of state court remedies on his unexhausted claims. The court also finds that petitioner has not been intentionally dilatory, and that the claims are potentially meritorious. Id. at 278.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's motion to stay these proceedings, pursuant to petitioner's First Amended Petition for Writ of Habeas Corpus (Dkt. No. 8), is granted;
2. Petitioner's previous motion to stay these proceedings pursuant to his initial petition (Dkt. No. 2), is denied as moot;
3. This action is stayed pending petitioner's exhaustion of state court remedies on his unexhausted claims;
4. Petitioner is directed to present his unexhausted claims to the state court within thirty days after the issuance of this stay;
5. Petitioner is further directed to file in this court, and serve on respondent, within thirty days after the California Supreme Court issues a final order resolving petitioner's currently unexhausted claims, the following: (1) a motion to lift the stay; (2) a request to file a Second Amended Petition for Writ of Habeas Corpus; and (3) a proposed Second Amended Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254;
6. Petitioner is cautioned that failure to timely comply with this order may result in the denial of his motion to further amend his petition; and
7. The Clerk of the Court is directed to administratively close this case.
© 1992-2012 VersusLaw ...