Vaughn v. On Habeas Corpus
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
MARK A. VAUGHN,
No. 2:16-cv-2384 JAM CKD P
Petitioner is a state prisoner proceeding pro se with a first amended petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Currently pending before the court is respondent’s
motion to dismiss the petition based on the failure to exhaust state court remedies. ECF No. 29.
Petitioner has opposed the motion requesting a stay and abeyance of the petition if the court finds
that he has not properly exhausted his federal claims for relief. ECF No. 31 at 5. Respondent
failed to address petitioner’s request for a stay. See ECF No. 32 (Reply to Opposition to Motion
In order to fully resolve the pending motion to dismiss, the court requires further briefing
by the parties concerning the applicability of a Rhines stay in the present case. See Rhines v.
Weber, 544 U.S. 269 (1995). Petitioner is advised that the court may stay a petition and hold it in
abeyance pursuant to Rhines only if (1) petitioner demonstrates good cause for the failure to have
previously exhausted the claims in state court, (2) the claims at issue potentially have merit, and
(3) petitioner has been diligent in pursuing relief. See also Mena v. Long, 813 F.3d 907, 910-12
(9th Cir. 2016) (extending the Rhines stay and abeyance procedure to federal habeas petitions that
are wholly unexhausted).
Accordingly, IT IS HEREBY ORDERED that:
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,
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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