United States District Court, E.D. California
RUSSELL W. OTTO, Petitioner,
CYNTHIA TAMPKINS, Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS, UNITED STATES MAGISTRATE
is a state prisoner proceeding in pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Pending before the court is petitioner's motion to stay
pursuant to Rhines v. Weber, 544 U.S. 269 (2005).
ECF No. 18. Respondent has filed an opposition. ECF No. 19.
district court may properly stay a habeas petition and hold
it in abeyance pursuant to Rhines v. Weber, 544 U.S.
269 (2005). See King v. Ryan, 564 F.3d 1133, 1135
(9th Cir. 2009). Under Rhines, a district court may
stay a mixed petition to allow a petitioner to present an
unexhausted claim to the state courts. Rhines, 544
U.S. at 277. Assuming the petition itself has been timely
filed, such a stay “eliminates entirely any limitations
issue with regard to the originally unexhausted claims, as
the claims remain pending in federal court[.]”
King, 564 F.3d at 1140. A petitioner qualifies for a
stay under Rhines so long as (1) good cause is shown
for a failure to have first exhausted the claims in state
court; (2) the claim or claims at issue potentially have
merit; and (3) there has been no indication that petitioner
has been intentionally dilatory in pursuing the litigation.
Rhines, 544 U.S. at 277-78. Although good cause does
not require “extraordinary circumstances, ”
courts must “interpret whether a petitioner has
‘good cause' for a failure to exhaust in light of
the Supreme Court's instruction in Rhines that
the district court should only stay mixed petitions in
‘limited circumstances.'” Wooten v.
Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (quoting
Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir.
2005)). The Ninth Circuit has further rejected a “broad
interpretation of ‘good cause.'”
Wooten, 540 F.3d at 1024. Instead, “good cause
turns on whether the petitioner can set forth a reasonable
excuse, supported by sufficient evidence, to justify that
failure.” Blake v. Baker, 745 F.3d 977, 982
(9th Cir. 2014)
court provides the entirety of petitioner's argument
found in his motion to stay:
I hereby request a stay per Rhines v. Weber, 544
U.S. 269 (2005). This petition is timely as I gave it to the
Correctional Officer on February 20, 2019. (1) The petition
was denied a hearing in the Supreme Court and a Writ cannot
form a second appeal. (2) This petition has potential merit.
It was accepted. (3) I have not been intentionally dilatory
in pursuing the litigation. Rhines v. Weber, 544
U.S. at 277-78 (2005).
ECF No. 18 at 1.
as respondent has argued, petitioner has failed to satisfy
the Rhines good cause requirement. In his motion,
petition merely provides conclusory statements without
providing sufficient details and evidence as required to
support a stay and abeyance of a mixed petition.
Blake, 745 F.3d at 982 (“An assertion of good
cause without evidentiary support will not typically amount
to a reasonable excuse justifying a petitioner's failure
to exhaust.”) Accordingly, the undersigned does not
find that petitioner has established good cause pursuant to
Rhines. It will therefore be recommended that
petitioner's motion to stay be denied without prejudice.
the court recommends dismissal of the habeas petition for
failure to exhaust, petitioner will be granted one more
opportunity to amend his mixed petition to delete the
unexhausted claims and proceed on the exhausted claims only.
Butler v. Long, 752 F.3d 1177, 1181 (9th Cir. 2014).
However, petitioner is cautioned that if he chooses to
proceed on an amended petition raising only exhausted claims
he will risk forfeiting consideration of the unexhausted
claims in this or any other federal court. See McCleskey
v. Zant, 499 U.S. 467 (1991); see also Rose v.
Lundy, 455 U.S. 509, 520-21 (1982); Rule 9(b), Rules
Governing Section 2254 Cases. If petitioner fails to amend
his petition within the requisite timeframe, the court will
submit the September 4, 2019 findings and recommendations to
the District Judge for dismissal of the petition without
prejudice of the mixed petition pending further
HEREBY ORDERED that petitioner will be granted thirty days to
file an amended petition including only exhausted claims. If
petitioner fails to file an amended petition within this
timeframe, the September 4, 2019 findings and recommendations
will be submitted to the District Judge assigned to the case
HEREBY RECOMMENDED that petitioner's motion to stay and
hold the petition in abeyance (ECF No. 18) be denied.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, any party may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Any response
to the objections shall be filed and served within fourteen
days after service of the objections. The parties are advised
that failure to file objections within the specified time may
waive the right to appeal the District Court's order.
Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
 The habeas corpus statute imposes a
one year statute of limitations for filing non-capital habeas
corpus petitions in federal court. In most cases, the one
year period will start to run on the date on which the state
court judgment became final by the conclusion of direct
review or the expiration of time for seeking direct review,
although the statute of limitations is tolled while a
properly filed application ...