Cebrero v. Frauenheim

Filing 18

ORDER GRANTING Petitioner's Motion to Stay Proceedings 1 ; ORDER for Petitioner to File Regular Status Reports, signed by Magistrate Judge Jennifer L. Thurston on 3/10/16: Thirty-Day Deadline for First Status Report. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OMAR CEBRERO,
Petitioner,

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v.

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S. FRAUENHEIM,
Respondent.

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Case No.: 1:16-cv-00173-JLT
ORDER GRANTING PETITIONER’S MOTION
TO STAY PROCEEDINGS (Doc. 1)
ORDER FOR PETITIONER TO FILE REGULAR
STATUS REPORTS

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Petitioner requested a stay to exhaust five claims. Plaintiff has now provided additional detail
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about these claims. As a result, the Court will order the matter stayed to allow Petitioner time to
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exhaust these claims.
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I.

Discussion

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A court has had the discretion to stay a petition. Calderon v. United States Dist. Court
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(Taylor), 134 F.3d 981, 987-988 (9th Cir. 1998); Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir.),

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cert. denied, 519 U.S. 1002 (1997). Granting a stay is appropriate where there is no intention on the
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part of the Petitioner to delay or harass and in order to avoid piecemeal litigation. Id. Where the
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petition contains only exhausted claims, still the court may hold it in abeyance to allow exhaustion of
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other claims. Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir. 2004).

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Notwithstanding the foregoing, federal case law continued to require that the Court dismiss
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“mixed” petitions containing both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509

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(1982). However, in Rhines v. Weber, 544 U.S. 269, (2005) the Court recognized that “[a]s a result of

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the interplay between AEDPA’s 1-year statute of limitations1 and Lundy’s dismissal requirement,

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petitioners who come to federal court with ‘mixed’ petitions run the risk of forever losing their

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opportunity for any federal review of their unexhausted claims.” Thus, federal courts may now issue

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“stay and abey” orders under appropriate circumstances to permit petitioners to exhaust claims before

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proceeding with their federal petitions. Rhines, 544 U.S. at 275. IWhile the procedure should be

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“available only in limited circumstances,” it “likely would be an abuse of discretion for a district court

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to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust,

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his unexhausted claims are potentially meritorious, and there is no indication that the petitioner

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engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278. When a petitioner has

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met these requirements, his interest in obtaining federal review of his claims outweighs the competing

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interests in finality and speedy resolution of federal petitions. Id.

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Here, Petitioner has timely filed a federal habeas petition containing seven claims exhausted

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through state habeas corpus proceedings. He has also indicated that he wishes to initiate state court

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habeas proceedings to exhaust five additional claims which he hopes to be able to include in the

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instant petition. Thus, it appears to the Court that Petitioner is prepared to exhaust his claims in a

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timely and expeditious manner, and there is no indication that, in seeking this stay and abeyance,

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Petitioner intends to harass or delay the proceedings nor does it appear that Petitioner is engaging in

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dilatory conduct. Although the Court is not prepared at this time to make a final assessment of the

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merits of the five unexhausted claims in the instant petition, a preliminary review of that claim

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indicates that Petitioner has sufficiently alleged a constitutional violation for each of those

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unexhausted claims. Moreover, it appears that Petitioner is proceeding in good faith and that no

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prejudice would inure to the parties by granting the requested stay.

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Therefore, good cause having been presented and good cause appearing therefore, the Court

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will grant Petitioner’s motion for a stay of the proceedings and will hold the petition for writ of habeas

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corpus in abeyance pending exhaustion of Petitioner’s state remedies.

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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA), 28 U.S.C. § 1244(d).

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However, the Court will not indefinitely hold the petition in abeyance. See Taylor, 134 F.3d at

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988 n. 11. No later than 30 days after the date of service of this order, Petitioner SHALL inform the

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Court of the status of the habeas proceedings in state court, including the dates his petitions were filed,

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the case numbers, and any outcomes.2 Further, Petitioner must proceed diligently to pursue his state

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court remedies, and every 60 days after the filing of the initial status report Petitioner must file a new

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status report regarding the status of his state court habeas corpus proceedings. Following final action

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by the state courts, Petitioner will be allowed 30 days within which to file a motion for leave to amend

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the instant petition to include the newly exhausted claims. Failure to comply with these instructions

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and time allowances will result in this Court vacating the stay nunc pro tunc to the date of this order.

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Kelly, 315 F.3d at 1071.
ORDER

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Accordingly, the Court ORDERS:

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1.

Petitioner’s motion to stay the instant proceedings on his habeas petition (Doc. 1) is
GRANTED;

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2.

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Proceedings on the instant petition are STAYED pending exhaustion of Petitioner’s
state remedies as to claims seven through twelve;

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3.

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Petitioner SHALL file a status report within 30 days of the date of service of this

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order, advising the Court of the status of all pending habeas proceedings filed in state

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court, the dates when such cases were filed, and any outcomes;
4.

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Petitioner SHALL file a new status report every 60 days after the filing of the initial
status report, regardless of whether the state courts have acted on his petition;

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The filing should be entitled “Status Report.”

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Petitioner is GRANTED 30 days following the final order of the state courts within

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which to file a motion for leave to amend the petition to include the newly exhausted

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claims.

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IT IS SO ORDERED.
Dated:

March 10, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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