Molina v. Lackner

Filing 23

ORDER signed by Magistrate Judge Gregory G. Hollows on 12/23/16 ordering pursuant to the order of remand issued by the Court of Appeals for the Ninth Circuit judgment is vacated and this action is reopened. Petitioner shall file a renewed motion for stay and abeyance within 30 days of this order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MATTHEW A. MOLINA,

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Petitioner,

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No. 2:13-cv-1926 TLN GGH P

v.

ORDER

HEIDI M. LACKNER,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, is proceeding with an application for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner’s habeas was previously dismissed as completely unexhausted on January 9,

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2014, after consideration of petitioner’s motion to stay for purposes of exhaustion, judgment was

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entered. (ECF Nos. 7, 14, 15.) Petitioner appealed, and on October 3, 2016,1 the Court of

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Appeals for the Ninth Circuit vacated and remanded the case in light of its recently issued

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decision holding that “a district court has the discretion to stay and hold in abeyance fully

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unexhausted petitions under the circumstances set forth in [Rhines v. Weber, 544 U.S. 269

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(2005)].” Mena v. Long, 813 F.3d 907 (9th Cir. 2016).
In accordance with the Ninth Circuit’s remand order, this action will be re-opened and the

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undersigned will give petitioner the opportunity to file a renewed motion for stay and abeyance

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The mandate was issued on October 26, 2016. (ECF No. 22.)
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pursuant to Rhines v. Weber, taking Mena’s recent holding into consideration. In Rhines v.

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Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005) the United States Supreme Court found that a stay

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and abeyance of a mixed federal petition should be available only in the limited circumstance that

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good cause is shown for a failure to have first exhausted the claims in state court, that the claim or

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claims at issue potentially have merit, and that there has been no indication that petitioner has

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been intentionally dilatory in pursuing the litigation. Rhines, supra, at 277-78, 125 S.Ct at 1535.

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Petitioner is advised that his renewed motion shall address the Rhines factors. Petitioner

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is advised that he must show good cause for the belated exhaustion of presently unexhausted

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claims he now desires to pursue.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Pursuant to the order of remand issued by the Court of Appeals for the Ninth Circuit,

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judgment is vacated and this action is reopened.

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2. Petitioner shall file a renewed motion for stay and abeyance within thirty days of this

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order. Failure to file the motion will result in a recommendation that this action be

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dismissed.

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Dated: December 23, 2016

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:076: moli1926.rem-Mena

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