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Marcell T. Hendrix v. Connie Gipson

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


October 2, 2012

MARCELL T. HENDRIX, PETITIONER,
v.
CONNIE GIPSON, 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. On August 22, 2012, petitioner filed a motion to stay this action to exhaust an unexhausted claim in state court pursuant to Rhines v. Weber, 544 U.S. 269, 277-279 (2005). (Dkt. No. 29.) The unexhausted claim, as set forth in the proposed amended petition, alleges that the trial judge in petitioner's criminal case should have been "removed due to receiving illegal benefits." (Dkt. No. 22 at 4.) Respondent has filed an amended opposition to petitioner's Rhines motion. (Dkt. No. 32.)

Under Rhines, the court may stay a mixed petition containing both exhausted and unexhausted claims pending exhaustion of the unexhausted claims if petitioner shows that (1) the unexhausted claims are potentially meritorious; and (2) petitioner had good cause for his earlier failure to exhaust state remedies. Here, the court need not reach the good cause requirement because petitioner has failed to show that his unexhausted claim is potentially meritorious. For the reasons set forth in its August 28, 2012 findings and recommendations, which were adopted by the district court on September 28, 2012, the court concludes that this claim lacks potential merit. (Dkt. No. 30 at 3; Dkt. No. 33.)

Accordingly, IT IS HEREBY ORDERED THAT petitioner's motion to stay (Dkt. No. 29) is denied.

20121002

© 1992-2012 VersusLaw Inc.



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