Sith v. Virga

Filing 16

ORDER signed by Magistrate Judge Dale A. Drozd on 7/31/2012, DENYING, without prejudice, petitioner's 14 motion for a stay and abeyance; within 30 days, petitioner shall file a new motion for a stay and abeyance. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VEASNA SITH,

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Petitioner,

No. 2:11-cv-00620-DAD P

vs.
TIM VIRGA,

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ORDER
Respondent.

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/

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

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corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his 2007 judgment of conviction

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on charges of robbery, residential burglary and assault with a deadly weapon. By order filed on

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September 2, 2011, the court determined that petitioner’s federal habeas petition contained both

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exhausted and unexhausted claims, and denied petitioner’s motion to file a protective writ as

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unnecessary and defective. Petitioner was advised of the two procedures for proceeding with a

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mixed petition under King v. Ryan, 564 F.3d 1133 (9th Cir. 2009), and granted leave to file a

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proper motion for a stay and abeyance.1 Now pending before the court is petitioner’s motion for

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a stay and abeyance filed on December 22, 2011. (Doc. No. 14.)

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On October 17, 2011 and November 22, 2011, petitioner was granted additional time to
file his motion for stay and abeyance. (Docs. No. 10 & 13.)
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In his motion petitioner has elected to seek stay and abeyance under the procedure

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outlined by the Supreme Court in Rhines v. Weber, 544 U.S. 269 (2005). However, the court

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finds that petitioner’s pending motion fails to adequately address the requirements set forth in

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Rhines. Petitioner asserts merely that his trial attorney’s failure to release trial records and case

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file to petitioner provides good cause for petitioner’s failure to exhaust state court remedies with

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respect to all his claims prior to the filing of his federal habeas petition. However, petitioner fails

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to provide any detail as to what specific records he required in order to present his unexhausted

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claims to the state courts. As to the diligence requirement, petitioner asserts only that in

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September of 2010, his legal assistant began to contact his trial attorney in an attempt to obtain

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his trial records. However, petitioner fails to explain what efforts, if any, were made to diligently

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pursue his unexhausted claims prior to September of 2010. For these reasons, the court will deny

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petitioner’s motion without prejudice and grant petitioner leave to file a new motion for a stay

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and abeyance. Should petitioner chose to file a new motion for a stay and abeyance, the court

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will order respondent to file a response or a statement of non-opposition to the motion.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s December 22, 2011

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motion for a stay and abeyance (Doc. No. 14) is denied without prejudice. Within thirty days

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from the service of this order, petitioner shall file a new motion for a stay and abeyance.2

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DATED: July 31, 2012.

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DAD:4
sith620.msa2

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Petitioner is advised to refer to the court’s order filed on September 2, 2011, setting
forth the specific requirements for the granting of a motion for stay and abeyance under Rhines v.
Weber, 544 U.S. 269 (2005).
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