Gerrue v. Holland

Filing 15

ORDER signed by Magistrate Judge Kendall J. Newman on 3/25/15 ORDERING that within thirty days of the date of this order, petitioner shall file further briefing in support of his motion to stay.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WARREN GERRUE,

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No. 2: 15-cv-0045 WBS KJN P

Petitioner,

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v.

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KIM HOLLAND,

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ORDER

Respondent.

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Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, petitioner is directed to file

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further briefing in support of his motion to stay.

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In the petition, petitioner requested that this action be stayed while his “state appeals are
still going.” (ECF No. 1 at 3.)
On January 22, 2015, the undersigned issued an order directing petitioner to file a motion

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to stay within thirty days indicating whether he was seeking to stay this action pursuant to the

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procedures outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002), or Rhines v. Weber, 544

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U.S. 269 (2005). (ECF No. 12.) This order described the procedures for a stay pursuant to

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Rhines. (Id. at 2.) A stay pursuant to Rhines requires a petitioner to show good cause for failure

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to exhaust the claims in state court prior to filing a petition. (Id.) In addition, a stay pursuant to

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Rhines is inappropriate where the claims are “plainly meritless” or where the petitioner engaged
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in “abusive litigation tactics or intentional delay.” (Id.)
On February 6, 2015, petitioner filed a motion to stay pursuant to Rhines. (ECF No. 13.)

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However, in this motion petitioner does not address the Rhines factors discussed in the January

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22, 2015 order. In particular, petitioner does not address the issue of whether there is good cause

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for his failure to exhaust his claims prior to the filing of this action. Accordingly, petitioner is

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granted thirty days to file further briefing in support of his motion to stay addressing why he did

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not exhaust his claims before filing the instant action.

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Accordingly, IT IS HEREBY ORDERED that within thirty days of the date of this order,
petitioner shall file further briefing in support of his motion to stay.
Dated: March 25, 2015

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