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Xavier S. Williams v. L. S. Mcewen

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


September 17, 2012

XAVIER S. WILLIAMS, PETITIONER,
v.
L. S. MCEWEN, RESPONDENT.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to this court's jurisdiction. (Dkt. No. 8.)

On May 23, 2012, the court denied petitioner's motion to stay this action pursuant to Rhines v. Weber, 544 U.S. 269 (2005). (Dkt. No. 9.) The court found that petitioner had "made no attempt to show good cause for failing to exhaust state remedies" as to Claims 1-7. (Id. at 2.) The court granted petitioner thirty days to choose one of the following alternatives: (1) file an amended habeas application omitting all claims except those claims which have been presented to and rejected by the California Supreme Court; or (2) file a renewed motion to stay this action, showing good cause for his failure to exhaust earlier. (Id. at 2-3.)

On June 20, 2012, petitioner filed a "justification why [the] court should grant his motion" to stay under Rhines. (Dkt. No. 12.) Petitioner asserts he "is a layman of the law" and was confused about California's timeliness laws. (Id.) However, he offers no specifics as to why he failed to raise Claims 1-7 in the state courts along with Claims 8-9. (See Dkt. No. 9 at 2.) The court finds that petitioner's vague and conclusory assertions do not amount to a showing of good cause under Rhines. Thus, the court will not revisit its earlier ruling on petitioner's motion to stay.

Instead, petitioner will be granted thirty days to file an amended habeas application omitting all claims except those claims previously exhausted in the California Supreme Court.

Accordingly, IT IS HEREBY ORDERED THAT petitioner is granted thirty days to file an amended habeas petition omitting all claims except those claims which have been presented to and rejected by the California Supreme Court. Failure to timely file an amended petition will result in dismissal of this action.

20120917

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