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Jacome v. Uribe

United States District Court, Ninth Circuit

June 18, 2013

MELVIN ESTIWAR JACOME, Petitioner,
v.
DOMINGO URIBE, JR., Respondent.

ORDER DENYING PETITIONER'S MOTION TO STAY PROCEEDING TO EXHAUST STATE COURT REMEDIES AND GRANTING PETITIONER'S MOTION FOR AN EXTENSION OF TIME TO FILE A REPLY (ECF Nos. 16, 20)

STANLEY A. BOONE, Magistrate Judge.

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

Petitioner, proceeding pro se, filed the instant petition for writ of habeas corpus on November 5, 2010, in the United States District Court for the Central District of California. On November 10, 2010, an order was issued transferring the petition to this Court. However, the Court did not actually receive the petition until January 15, 2013.

On January 22, 2013, the Court directed Respondent to file a response to the petition. Respondent filed an answer to the petition on March 18, 2013.

On April 8, 2013, Petitioner filed a motion for an extension of time to file his traverse. The Court granted Petitioner's motion on April 11, 2013.

On May 8, 2013, Petitioner filed a motion to stay the proceedings to exhaust Ground Four of the petition. Respondent filed an opposition to Petitioner's motion on May 9, 2013, and Petitioner, through counsel, filed a reply June 3, 2013.

On May 17, 2013, counsel David Mugridge filed a notice of appearance in this case, along with a motion for an extension of time to file a reply.[1]

I.

DISCUSSION

A. Motion to Stay Proceedings

In Rhines v. Weber , 544 U.S. 269 (2005), the Supreme Court held a federal court has limited discretion to stay the proceedings to allow a petitioner to return to state court to exhaust the judicial remedies. Under Rhines, a federal petition containing both exhausted and unexhausted claims is stayed and remains pending in federal court while the petitioner returns to state court to exhaust. Id. at 277. Therefore, the Rhines procedure protects the petitioner from any potential untimeliness. However, there are limitations when the petition may be stayed under Rhines. In order to qualify for a stay under Rhines, the petitioner must (1) show good cause for his failure to exhaust all claims before filing the federal action; (2) explain how his unexhausted claim is potentially meritorious; (3) indicate the status of any pending state court proceedings regarding the unexhausted claim; and (4) there must be no indication that the petitioner engaged in intentionally dilatory litigation tactics. Id. at 277-278.

The California Supreme Court denied Petitioner's petition for review on February 9, 2009, and judgment became final 90 days thereafter, i.e. May 11, 2009. Absent any applicable tolling, Petitioner had one-year from May 11, 2009, to file a federal petition for writ of habeas corpus. Petitioner filed the instant federal petition for writ of habeas corpus in November 2010.

Petitioner implicitly concedes that he filed the instant motion to stay the proceedings after Respondent filed an answer to the petition pointing out that ground four of the petition (Sixth Amendment claim challenging his sentence) was not exhausted in the state court.

In this instance, the Court does not find good cause. Respondent has filed an answer to the petition and Petitioner's reply is past due. Indeed, in his motion, Petitioner cites only to the fact that of his pro se status and limitations of his incarceration as a potential basis for "good cause." In his reply, Petitioner argues good cause is established by employing an "excusable neglect" standard. (Reply, at 3-4.) Petitioner argues good cause is established because there is no prejudice to respondent, the length of delay would be minimal, and there is no showing of bad faith on the part of petitioner. (Id. at 4.) Such circumstances do not provide a basis for demonstrating good cause. If this were the case then every petitioner who proceeds pro se would be entitled to a stay and it would render the stay-and-abey procedure routine, contrary to the holding of Rhines which instructs district courts that a stay is only appropriate in limited circumstances. Rhines , 544 U.S. at 276-277 ("Stay and abeyance, if employed too frequently, has the ...


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