Vaughn v. On Habeas Corpus

Filing 33

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/30/17 ORDERING petitioner shall file a request for a stay and abeyance addressing each of the three Rhines factors described above no later than December 29, 2017. Respondent may file an opposition to the request for a stay no later than January 12, 2018. The parties are advised that any request for an extension of time of this briefing schedule is disfavored.(Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARK A. VAUGHN,

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No. 2:16-cv-2384 JAM CKD P

Petitioner,
v.

ORDER

STUART SHERMAN,

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Respondent.

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

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habeas corpus pursuant to 28 U.S.C. § 2254. Currently pending before the court is respondent’s

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motion to dismiss the petition based on the failure to exhaust state court remedies. ECF No. 29.

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Petitioner has opposed the motion requesting a stay and abeyance of the petition if the court finds

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that he has not properly exhausted his federal claims for relief. ECF No. 31 at 5. Respondent

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failed to address petitioner’s request for a stay. See ECF No. 32 (Reply to Opposition to Motion

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to Dismiss).

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In order to fully resolve the pending motion to dismiss, the court requires further briefing

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by the parties concerning the applicability of a Rhines stay in the present case. See Rhines v.

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Weber, 544 U.S. 269 (1995). Petitioner is advised that the court may stay a petition and hold it in

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abeyance pursuant to Rhines only if (1) petitioner demonstrates good cause for the failure to have

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previously exhausted the claims in state court, (2) the claims at issue potentially have merit, and
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(3) petitioner has been diligent in pursuing relief. See also Mena v. Long, 813 F.3d 907, 910-12

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(9th Cir. 2016) (extending the Rhines stay and abeyance procedure to federal habeas petitions that

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are wholly unexhausted).

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Petitioner shall file a request for a stay and abeyance addressing each of the three
Rhines factors described above no later than December 29, 2017;

2. Respondent may file an opposition to the request for a stay no later than January 12,
2018; and,
3. The parties are advised that any request for an extension of time of this briefing
schedule is disfavored.
Dated: November 30, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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12/vaug2384.briefmotion2stay.docx

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