Williams v. On Habeas Corpus

Filing 21

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/5/13 DENYING 20 Motion to Stay; Petitioner is granted 30 days from the date of this order to file an amended petition containing only claims previously exhausted in the California Supreme Court. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTONIO R. WILLIAMS,

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Petitioner,

No. 2:12-cv-1588 LKK CKD P

vs.
UNKNOWN,

ORDER
Respondent.
/
Petitioner, a state prisoner proceeding pro se, has filed an amended petition for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 18.) On February 1, 2013, the

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undersigned determined that the amended petition was “mixed” in that it contained both

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exhausted and unexhausted claims. (See Dkt. No. 18 at 4-6.) Petitioner was granted thirty days

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to either (1) file an amended petition omitting all unexhausted claims or (2) seek a stay pursuant

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to Rhines v. Weber, 544 U.S. 269 (2005). Petitioner was advised that to be entitled to a Rhines

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stay, he must show good cause for his earlier failure to exhaust and that the unexhausted claims

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are potentially meritorious. (Dkt. No. 19.)

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Before the court is petitioner’s February 19, 2013 motion to stay. (Dkt. No. 20.)

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While petitioner cites legal advice given to him in 2010 concerning his presentation of claims to

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the state appellate courts, he fails to show good cause for not previously exhausting all the instant

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claims. Petitioner also fails to show that his unexhausted claims are potentially meritorious.
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Thus the court will deny petitioner’s motion to stay. Petitioner will be granted thirty days to file

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a second amended petition containing only exhausted claims.

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Accordingly, IT IS HEREBY ORDERED THAT:

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1. Petitioner’s February 19, 2013 motion to stay (Dkt. No. 20) is denied; and

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2. Petitioner is granted thirty days from the date of this order to file an amended

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petition containing only claims previously exhausted in the California Supreme Court. Failure to

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comply with this order will result in a recommendation that this action be dismissed.

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Dated: March 5, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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will1588.stay

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