Green v. Paramo

Filing 14

ORDER DENYING 10 Motion for Stay and Abeyance, signed by Magistrate Judge Sandra M. Snyder on 12/3/14. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN GREEN,

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Petitioner,

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Case No. 1:14-cv-01648-LJO-SMS HC
ORDER DENYING MOTION FOR
STAY AND ABEYANCE

v.
DANIEL PARAMO, Warden,

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Respondent.

Doc. 10

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Petitioner, who filed his petition in this Court on October 22, 2014,
now seeks an order of stay and abeyance, pursuant to Rhines v. Weber, 544 U.S. 269, 275 (2005),
to permit him to pursue additional, but unspecified, claims in state court. Because the motion lacks

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the factual specificity necessary to permit the Court to analyze the propriety of granting stay and
abeyance, the Court must deny the motion.
I.

DISCUSSION
A federal district court may not address a petition for writ of habeas corpus unless the

petitioner has exhausted state remedies with respect to each claim raised. Rose v. Lundy, 455 U.S.
509, 515 (1982). A petition is fully exhausted when the highest state court has had a full and fair

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opportunity to consider all claims before the petitioner presents them to the federal court. Picard v.

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Connor, 404 U.S. 270, 276 (1971). "[P]etitioners who come to federal courts with 'mixed' petitions

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run the risk of forever losing their opportunity for federal review of the unexhausted claims.

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Rhines, 544 U.S. at 275.

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Federal district courts should stay mixed petitions only in limited circumstances. Id. at 277.
A district court may stay a mixed petition if (1) the petitioner demonstrates good cause for failing to

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have first exhausted all claims in state court; (2) the claims potentially have merit; and (3) the
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petitioner has not been dilatory in pursuing the litigation. Id. at 277-78. Petitioner has failed to
establish any of these three elements.

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A.

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Petitioner's failure to indicate the additional unexhausted claims that he seeks to pursue

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Failure to Specify Unexhausted Claims

precludes the issuance of stay and abeyance for two reasons. First, without knowing the claims that
Petitioner seeks to pursue, the Court cannot determine whether those claims potentially have merit.

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Second, "a district court shall entertain an application for a writ of habeas corpus in behalf
of a prisoner in custody pursuant to the judgment of a State court only on the ground that he is in

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custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §

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2254(a). Because Petitioner does not allege the claims for which he seeks an order of stay and

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abeyance, the Court is unable to determine whether any of the additional claims constitute a

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violation of the U.S. Constitution or federal laws or treaties. When a petition includes no mention

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of any federal grounds, a district court may appropriately dismiss it. Burkey v. Deeds, 824 F.Supp.
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190, 193 (D.Nev. 1993).

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B.

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Although Petitioner acknowledges the necessity to allege good cause under Rhines, he

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Failure to Allege Good Cause With Specificity

merely refers vaguely to "extenuating circumstances," without specifically advising the Court of

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what those circumstances are. In the absence of specific factual allegations, the Court cannot
determine that good cause exists for Petitioner's failure to exhaust the additional claims.

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C.

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The motion is completely silent on the question of Petitioner's diligent pursuit of the

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Pursuit of Litigation

litigation necessary to exhaust the additional claims.
II.

CONCLUSION AND ORDER

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Petitioner's having alleged no factual basis to establish the elements necessary for an order
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of stay and abeyance, the Court hereby DENIES the motion for stay and abeyance without
prejudice.

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IT IS SO ORDERED.
Dated:

December 3, 2014

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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