Eickenhorst v. Gipson

Filing 8

ORDER signed by Magistrate Judge Dale A. Drozd on 03/11/14 granting 7 Motion to Stay. Petitioner is ordered to present all of his unexhausted claims to the California Supreme Court in a state habeas corpus petition to be filed within 30 days fro m the date of this order. This action is stayed and the clerk of the court is directed to administratively close the case. Petitioner shall file and serve a status report in this case on the first court day of each month. Petitioner is ordered to file a motion to lift the stay of this action within 30 days after petitioner is served with the California Supreme Court's order disposing of the state exhaustion petition. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEREMY SCOTT EICKENHORST,

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Petitioner,

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No. 2:12-cv-2363 DAD P

v.

ORDER

CONNIE GIPSON,

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Respondents.

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Petitioner, a state prisoner proceeding through counsel, has filed a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254.1 In accordance with the court’s January 29, 2014

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order, counsel has filed a motion for a stay and abeyance.
In the pending motion, counsel explains that petitioner filed a direct appeal challenging

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his judgment of conviction for engaging in lewd acts upon a child. Thereafter, petitioner received

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information directly from the District Attorney’s Office of an Internal Affairs investigation that

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indicates a detective involved in petitioner’s case had elicited false statements regarding sexual

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abuse from a minor in a manner so prejudicial as to result in the imposition of discipline against

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that detective. Petitioner’s counsel has been working to determine how deeply petitioner’s case

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was affected by this detective and whether similar conduct occurred in petitioner’s case. Counsel

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Petitioner has consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C.
§ 636. (Doc. No. 5)
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contends that petitioner’s conviction was based almost exclusively on the testimony from alleged

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victims and that if that testimony was illegal obtained or improperly influenced, petitioner’s right

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to a fair trial was substantially violated. Counsel for petitioner maintains that petitioner has not

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engaged in dilatory litigation tactics and would receive no benefit from any delay in these

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proceedings. (Pet’r’s Mot. for Sty. & Abeyance at 4-6.)

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District courts should stay a mixed petition when “the petitioner ha[s] good cause for his

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failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication

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that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines v. Weber, 544 U.S.

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269, 277-78 (2005). The Ninth Circuit has clarified that “good cause” for failure to exhaust does

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not require “extraordinary circumstances.” Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005).

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Here, the court finds that petitioner has met the criteria set forth in Rhines for the issuance of a

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stay. Moreover, if petitioner obtains relief in state court, his federal petition may be rendered

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moot, thereby serving the interests of judicial economy as well as the interests of justice.

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Accordingly, good cause having been shown, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion for a stay and abeyance (Doc. No. 7) is granted;

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2. Petitioner is ordered to present all of his unexhausted claims to the California Supreme

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Court in a state habeas corpus petition to be filed within thirty days from the date of this order;

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3. This action is stayed, and the Clerk of the Court is directed to administratively close

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the case;
4. Petitioner shall file and serve a status report in this case on the first court day of each
month; and
5. Petitioner is ordered to file a motion to lift the stay of this action within thirty days

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after petitioner is served with the California Supreme Court’s order disposing of the state

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exhaustion petition.

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Dated: March 11, 2014

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DAD:9
eick2363.sty

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