Velasquez v. Virga

Filing 8

ORDER to SHOW CAUSE Why Stay Should Not Be Vacated, signed by Magistrate Judge Michael J. Seng on 10/30/13: Fourteen (14) day deadline for filing response to the OSC. (Hellings, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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1:12-cv-01326 AWI MJS HC
LEOPOLDO PAUL VELASQUEZ,

ORDER TO SHOW CAUSE WHY STAY
Petitioner, SHOULD NOT BE VACATED

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v.

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TIM VIRGA, Warden,
Respondent.

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

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Petitioner was convicted of first degree murder and various enhancements and

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sentenced to life without the possibility of parole plus 25 years to life in state prison. (Pet.

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at 1, ECF No. 1.) He appealed his conviction to the California Court of Appeal, Fifth

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Appellate District, which affirmed the judgment. (Id.) Petitioner subsequently filed a

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petition for a review in the California Supreme Court, but it was denied on June 22,

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2011. (Id.)

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On August 15, 2012, Petitioner filed the instant petition. At the time of filing,

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Petitioner had not sought any other review of his conviction in the California Supreme

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Court. Further, Petitioner admits that claims two through five of the present petition have
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not been presented to the California Supreme Court. However, Petitioner requested that

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his federal petition be stayed pending state exhaustion. (Mot. to Stay, ECF No. 2) The

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Court granted the stay on September 18, 2012. (ECF No. 7.)

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A year has passed since the stay was issued, and Petitioner has not yet notified
the Court that he has exhausted his state court remedies.

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As discussed by the Supreme Court, the stay and abeyance procedure is

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available only in limited circumstances because the procedure frustrates AEDPA's

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objective of encouraging finality and streamlining federal habeas proceedings. Rhines v.

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Weber, 544 U.S. 277 (2005).

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A mixed petition should not be stayed indefinitely... Without time
limits, petitioners could frustrate AEDPA's goal of finality by dragging out
indefinitely their federal habeas review. Thus, district courts should place
reasonable time limits on a petitioner's trip to state court and back. See,
e.g., Zarvela, 254 F.3d, at 381 ("[District courts] should explicitly condition
the stay on the prisoner's pursuing state court remedies within a brief
interval, normally 30 days, after the stay is entered and returning to federal
court within a similarly brief interval, normally 30 days after state court
exhaustion is completed"). And if a petitioner engages in abusive litigation
tactics or intentional delay, the district court should not grant him a stay at
all. See id., at 380-381.

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Rhines, 544 U.S. at 277-78.

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Here, a year has passed since the matter was stayed. Petitioner has had

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sufficient time to present any unexhausted claims before the state courts. Petitioner is

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therefore ordered to show cause and explain why the stay should not be vacated.

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ORDER

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Accordingly, it is ORDERED that Petitioner file a response to the order to show

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cause within fourteen (14) days of service of this order explaining why the stay should

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not be vacated.

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Petitioner is forewarned that failure to follow this order will result in dismissal of

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///

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the petition pursuant to Local Rule 110.

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IT IS SO ORDERED.

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Dated:

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October 30, 2013

/s/

UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

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Michael J. Seng

ci4d6

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