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Luis M. Vaca v. M.D. Biter

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 6, 2012

LUIS M. VACA, PLAINTIFF,
v.
M.D. BITER,
DEFENDANT

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING PETITIONER'S REQUEST TO WITHDRAW UNEXHAUSTED CLAIMS FROM PETITION AND HOLD THE PETITION IN ABEYANCE WHILE HE EXHAUSTS THE STATE COURT REMEDIES [Doc. 11]

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Petitioner filed the instant petition for writ of habeas corpus on July 26, 2012. On August 16, 2012, the Court issued an order to show cause why the petition should not be dismissed as a mixed petition.

On September 14, 2012, Petitioner filed a motion for stay and abeyance.

On September 28, 2012, the Court the Court denied Petitioner's motion for stay and abeyance under Rhines v. Weber, 544 U.S. 269 (2005), but informed Petitioner that a stay under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) is available at his option.

On October 24, 2012, Petitioner filed a motion requesting to withdraw all the unexhausted claims and stay the remaining exhausted claims while he returns to state court. As Petitioner meets the qualifications for a Kelly stay, the petition contains two unexhausted claims which has been withdrawn, and without these claims the petition appears to be fully exhausted, and the first step of the Kelly procedure is complete.

Therefore, the Court will stay the proceedings according to the second step of the Kelly procedure. Petitioner will be instructed to file status reports regarding his progress through the state courts. Once the California Supreme Court renders its opinion, provided the opinion is a denial of relief, Petitioner must file an amended petition including all of his exhausted claims. He is forewarned again that claims may be precluded as untimely if they do not comply with the one-year statute of limitations under 28 U.S.C. § 2254(d), which is not statutorily tolled during the time the petition is stayed under Kelly.

Based on the foregoing, it is HEREBY ORDERED that:

1. Petitioner's motion to amend the petition to withdraw the unexhausted claims is GRANTED;

2. Petitioner's motion for stay of the proceedings is GRANTED pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003);

3. The proceedings are STAYED pending exhaustion of state remedies;

4. Petitioner is DIRECTED to file a status report regarding his progress in the state courts within thirty (30) days, and then every thirty (30) days thereafter until exhaustion is complete;

5. Within thirty (30) days after the final order of the California Supreme Court, Petitioner must file an amended petition in this Court including all exhausted claims; and

6. Petitioner is forewarned that the failure to comply with this order will result in the Court vacating the stay pursuant to Local Rule 110.

IT IS SO ORDERED.

20121106

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