Zayas v. Harris

Filing 18

ORDER Granting Petitioner Leave to File a Motion to Stay Proceedings to Exhaust Claims, signed by Magistrate Judge Jennifer L. Thurston on 07/09/14. Thirty-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RODNEY ZAYAS,
Petitioner,
v.
KAMALA D. HARRIS, et al.,
Respondents.

Case No.: 1:13-cv-01863-LJO-JLT
ORDER GRANTING PETITIONER LEAVE TO
FILE A MOTION TO STAY PROCEEDINGS TO
EXHAUST CLAIMS
THIRTY DAY DEADLINE

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

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PROCEDURAL HISTORY

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The instant petition was filed on November 18, 2013. On November 20, 2013, the Court

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ordered Respondent to file a response to the petition within sixty days. (Doc. 4). After requesting and

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receiving an extension of time, Respondent filed the instant motion to dismiss on February 19, 2014,

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contending that some of the claims in the instant petition are unexhausted. (Doc. 12). Respondent

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argues that should Petitioner fail to withdraw those unexhausted claims, the Court should dismiss the

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petition. (Id.). Petitioner did not file an opposition to the motion to dismiss. Accordingly, and in

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order to avoid dismissing the entire petition, the Court attempted to give Petitioner the benefit of the

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doubt by granting him leave to withdraw the two unexhausted claims in lieu of dismissal. (Doc. 15).

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On June 2, 2014, Petitioner filed two motions. The first requested that the two unexhausted
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claims be withdrawn. (Doc. 16). The second criticized this Court for failing to allow Petitioner to

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stay proceedings in order to exhaust the unexhausted claims, even though Petitioner had never filed a

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request for issuance of a stay. (Doc. 17).

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What Petitioner apparently fails to appreciate is that it is not the Court’s responsibility to litigate

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Petitioner’s case for him. Nor is it the Court’s responsibility to provide legal advice to Petitioner

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about what legal processes are open to him and what legal options he should pursue; that is

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Petitioner’s responsibility. It was not this Court’s obligation to explain the legal parameters of granting

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stays of proceedings. If Petitioner had wanted to exhaust his unexhausted claims in state court, he

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could simply have filed a motion making that request. Filing motions that serve the sole purpose of

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criticizing the Court for failing to act on Petitioner’s behalf are a waste of the Court’s limited judicial

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resources.

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However, in an effort to once again give Petitioner the benefit of the doubt, the Court will

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grant Petitioner thirty days within which to file a proper motion to stay proceedings to exhaust the two

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unexhausted claims. If Petitioner chooses not to file such a motion, then, after expiration of the thirty-

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day period, the Court will grant the motion to dismiss the two unexhausted claims (Doc. 16), and the

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case will proceed on the remaining exhausted claims. If Petitioner files a proper motion for stay

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(either under the Ninth Circuit’s approach in Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir. 2004), or

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under the U.S. Supreme Court’s approach in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005)),

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the Court will consider the merits of such a request and issue the appropriate orders in due course.

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Accordingly, it is HEREBY ORDERED that Petitioner is granted thirty days from the date of

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service of this order within which to file, should he so desire, a motion for a stay of proceedings to

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exhaust unexhausted claims. Upon expiration of the thirty-day period, if no motion to stay has been

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filed, the Court will grant Petitioner’s motion to withdraw the unexhausted claims.

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IT IS SO ORDERED.
Dated:

July 9, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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