United States District Court, E.D. California
ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS
(DOC. NO. 6) ORDER GRANTING PETITIONER'S MOTION FOR STAY
AND ABEYANCE (DOC. NO. 11) ORDER DIRECTING PETITIONER TO FILE
REGULAR STATUS REPORTS
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
March 2, 2017, the Magistrate Judge issued Findings and
Recommendations to summarily dismiss the petition for failure
to exhaust state remedies. (Doc. No. 6.) The Findings and
Recommendations were served upon all parties and contained
notice that any objections were to be filed within twenty-one
days from the date of service of that order. Over twenty-one
days passed and no party filed objections. On March 27, 2017,
the Court adopted the Findings and Recommendations, dismissed
the petition, closed the case, and entered judgment. (Docs.
No. 7-8.) On that same date, the Court received a purported
motion for extension of time to file objections. (Doc. No.
9.) The Court vacated the order dismissing the petition and
granted Petitioner an extension of time to file objections.
April 14, 2017, Petitioner filed objections. Upon review of
the objections, the Court will decline to adopt the Findings
and Recommendation and will order a stay of the proceedings
pending exhaustion of state remedies.
objections, Petitioner concedes that he has not exhausted
Grounds 1-4, 6, and 8-10 of the petition in the state courts.
The only grounds for relief presented in the petition are
those same enumerated grounds for relief. Therefore, the
instant petition is completely unexhausted. Conceding that
his petition is at least partially unexhausted, Petitioner
requests a stay of the proceedings under Rhines v.
Weber, 544 U.S. 269 (2005) and Pace v.
DiGuglielmo, 544 U.S. 408 (2005).
the Ninth Circuit held that a district court has discretion
to hold a completely unexhausted federal petition in abeyance
pending exhaustion of state remedies. Mena v. Long,
813 F.3d 907, 910 (9th Cir. 2016). Pursuant to
Rhines, a district court may hold a petition in
abeyance when “the petitioner had good cause for his
failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics.”
Rhines, 544 U.S. at 278. In this case, Petitioner
states he is uncertain if his unexhausted claims will be
untimely once the state courts address them. In light of this
uncertainty, he has filed the instant
“protective” petition. In Pace, the
Supreme Court contemplated the filing of a protective
petition in such a case. Pace, 544 U.S. at 416.
Further, the Court noted that “[a] petitioner's
reasonable confusion about whether a state filing would be
timely will ordinarily constitute ‘good cause' for
him to file in federal court.” Id. (citing
Rhines, 544 U.S. at 278). Therefore, Petitioner has
shown good cause for a stay of his petition. Although the
Court is not prepared at this time to make an assessment of
the merits of the claims, a preliminary review of the claims
indicates that Petitioner alleges constitutional violations
that, if true, would entitle him to habeas relief. In
addition, it appears that no prejudice would inure to the
parties by granting the requested stay. Also, there is no
indication that Petitioner has engaged in intentionally
dilatory litigation tactics.
the Court will grant Petitioner's motion for a stay of
the proceedings and will hold the petition for writ of habeas
corpus in abeyance pending exhaustion of Petitioner's
the Court will not indefinitely hold the petition in
abeyance. See Calderon v. U.S. Dist. Court for Northern
Dist. of California (Taylor), 134 F.3d 981, 988 n. 11
(9th Cir. 1998). No later than thirty (30) days after the
date of service of this order Petitioner must inform the
Court of the status of the habeas proceedings in state court,
including the dates his cases were filed, the case numbers,
and any outcomes. Further, Petitioner must proceed diligently
to pursue his state court remedies, and every sixty (60) days
after the filing of the initial status report Petitioner must
file a new status report regarding the status of his state
court habeas corpus proceedings. Following final action by
the state courts, Petitioner will be allowed thirty (30) days
within which to file a motion for leave to amend the instant
petition to include the newly exhausted claims. Failure to
comply with these instructions and time allowances will
result in this Court vacating the stay nunc pro tunc
to the date of this order. Kelly v. Small, 315 F.3d
1063, 1071 (9th Cir. 2003).
IT IS HEREBY ORDERED that:
Court DECLINES to adopt the Findings and Recommendations
issued on March 2, 2017;
Petitioner's motion to stay the instant proceedings on
his habeas petition (Doc. 1), is GRANTED;
Proceedings on the instant petition are STAYED pending
exhaustion of Petitioner's state remedies concerning the
unexhausted claims presented in his petition (Doc. No. 1);
Petitioner is DIRECTED to file a status report within thirty
(30) days of the date of service of this order, advising the
Court of the status of all pending habeas proceedings filed
in state court, the dates when such cases were filed, and any
Petitioner is DIRECTED to file a new status report every
sixty (60) days after the filing of ...