Washington v. Pfeiffer

Filing 5

ORDER for Supplemental Brief Regarding Rhines Stay, signed by Magistrate Judge Stanley A. Boone on 3/28/18. 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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CHRIS LAVALE WASHINGTON,
Petitioner,

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Case No. 1:18-cv-00368-SAB-HC
ORDER FOR SUPPLEMENTAL BRIEF
REGARDING RHINES STAY

v.
C. PFEIFFER,
Respondent.

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

17 pursuant to 28 U.S.C. § 2254.
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I.

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DISCUSSION

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Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a

21 habeas petition and allows a district court to dismiss a petition before the respondent is ordered
22 to file a response, if it “plainly appears from the petition and any attached exhibits that the
23 petitioner is not entitled to relief in the district court.”
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A petitioner in state custody who is proceeding with a petition for writ of habeas corpus

25 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based
26 on comity to the state court and gives the state court the initial opportunity to correct the state’s
27 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v.
28 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by

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1 providing the highest state court with a full and fair opportunity to consider each claim before
2 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v.
3 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971).
In the petition, Petitioner challenges his Fresno County Superior Court conviction for

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5 voluntary manslaughter on the sole ground that the trial court prejudicially erred in allowing the
6 prosecution to present almost the entirety of Pickett’s interview with detectives. (ECF No. 1 at
7 5).1 It appears that Petitioner has raised this claim in a state habeas petition that is currently
8 pending before the California Supreme Court, (ECF No. 1 at 3), and thus, Petitioner has filed a
9 motion for stay and abeyance “pending adjudication of the state habeas corpus process and
10 proper exhaustion of the state remedies,” (ECF No. 2).
Under Rhines v. Weber, 544 U.S. 269 (2005), “stay and abeyance” is available only in

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12 limited circumstances, and only when: (1) there is “good cause” for the failure to exhaust; (2) the
13 unexhausted claims are not “plainly meritless”; and (3) the petitioner did not intentionally
14 engage in dilatory litigation tactics. 544 U.S. at 277–78. However, in the motion for stay and
15 abeyance, Petitioner has not established “good cause” for his failure to exhaust and has failed to
16 cite to any authority or to set forth any arguments and allegations in support of the stay.
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II.

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ORDER
Accordingly, within THIRTY (30) days from the date of service of this order, Petitioner

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20 shall file a supplemental brief addressing whether he is entitled to stay and abeyance under
21 Rhines.
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IT IS SO ORDERED.

24 Dated:

March 28, 2018
UNITED STATES MAGISTRATE JUDGE

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Page numbers refer to the ECF page numbers stamped at the top of the page.

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