United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254, a
request to stay the petition pending the exhaustion of
petitioner's state court remedies, and a request to
proceed in forma pauperis.
of the in forma pauperis application reveals that petitioner
is unable to afford the costs of suit. Accordingly, the
application to proceed in forma pauperis, ECF No. 2, will be
granted. See 28 U.S.C. § 1915(a).
petition for writ of habeas corpus raises one claim: that the
trial court's 2010 finding that petitioner's prior
burglary conviction was a strike was not made by a jury, in
violation of petitioner's Sixth Amendment rights under
People v. Gallardo, 4 Cal. 5th 120 (2017). Following
Gallardo, petitioner obtained an amended judgment of
conviction from the trial court on October 30, 2018. He then
filed a petition for writ of habeas corpus in the California
Supreme Court on August 14, 2019, which was amended on
September 16, 2019 and remains pending. See Haynie
(Donell) on Habeas Corpus, Cal. S.Ct. No.
S257437. See ECF No. 1. Petitioner has
filed a one paragraph request “that the Court issue a
‘stay and abeyance' order until the state
proceedings have concluded.” ECF No. 3 at 1.
recently, district courts routinely dismissed petitions that
were wholly unexhausted at the time of filing. See
Jiminez v. Rice, 276 F.3d 478 (9th Cir. 2001);
Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.
2006). However, the Ninth Circuit Court of Appeals has
clarified that unexhausted petitions may, under limited
circumstances, be stayed pending exhaustion. Mena v.
Long, 813 F.3d 907, 912 (9th Cir. 2016). The
requirements for a stay are those set forth in Rhines v.
Weber, 544 U.S. 269, 278 (2005). The U.S. Supreme Court
explained in Rhines that stay and abeyance pending
exhaustion is appropriate only in limited circumstances. The
petitioner must show that “‘ 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.'” Mena, 813
F.3d at 910 (quoting Rhines, 544 U.S. at 278).
of these factors cannot merely be inferred by the court, but
must be clearly presented by petitioner in a fully supported
motion. Therefore, the court will deny petitioner's
instant motion to stay without prejudice to petitioner filing
a motion for stay and abeyance which addresses the factors
identified in Rhines. Alternatively, petitioner may
withdraw his federal petition and refile it after the
California Supreme Court has ruled on his state
IT IS HEREBY ORDERED that:
1. Petitioner's motion to proceed in forma pauperis, ECF
No. 2, is granted.
2. Petitioner's motion to stay, ECF No. 3, is denied
3. Petitioner may, within thirty (30) days after the filing
date of this order, file a motion for stay and abeyance of
this action pending exhaustion of petitioner's claims in
the state courts. Such motion must include a showing that
“‘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.'”
Mena, 813 F.3d at 910 (quoting Rhines, 544
U.S. at 278).
4. Alternatively, petitioner may request the voluntary
dismissal of this action without prejudice.
5. Failure of petitioner to timely file a motion to stay and
abey this action, or request the voluntary dismissal of this
action, will result in the involuntary dismissal of this
action without prejudice.