Huerta v. Davis

Filing 15

ORDER SETTING BRIEFING SCHEDULE signed by Magistrate Judge Stanley A. Boone on 4/21/2017. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ARTURO HUERTA, 12 Case No. 1:15-cv-01827-SAB-HC Petitioner, 13 ORDER SETTING BRIEFING SCHEDULE v. 14 RON DAVIS, 15 Respondent. 16 Petitioner is a state prisoner proceeding pro se in a habeas corpus action pursuant to 28 17 18 U.S.C. § 2254. In the answer, Respondent asserts that two claims in the petition are unexhausted 1 19 but should be denied on the merits. (ECF No. 10 at 20, 25). In the traverse, Petitioner states that 20 he filed a state habeas petition in the superior court on February 16, 2016 in order to exhaust the 21 two unexhausted claims. Additionally, Petitioner requests that the Court hold the petition in 22 abeyance pending resolution of the unexhausted claims in state court. (ECF No. 12 at 5). “Stay 23 and abeyance” is available only in “limited circumstances,” and only when: (1) there is “good 24 cause” for the failure to exhaust; (2) the unexhausted claims are not “plainly meritless”; and (3) 25 the petitioner did not intentionally engage in dilatory litigation tactics. Rhines v. Weber, 544 26 U.S. 269, 277–78 (2005). 27 28 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 1 Accordingly, the Court HEREBY ORDERS that: 1 2 1. Within THIRTY (30) days of the date of service of this order, Petitioner shall file 3 a brief addressing exhaustion and whether he is entitled to “stay and abeyance” 4 under Rhines; 2. Respondent shall file a response within TWENTY-ONE (21) days of the date of 5 service of Petitioner’s brief; and 6 3. Petitioner may file a reply within SEVEN (7) days of the date of service of 7 Respondent’s reply. 8 9 10 IT IS SO ORDERED. 11 Dated: April 21, 2017 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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