Roberson v. People of the State of California

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 7/13/2017 DENYING without prejudice 7 Motion to Stay. Within 30 days of this order, petitioner may file motion for stay and abeyance under Rhines. If petitioner does not file a motion for stay or if he does not address all three Rhines factors, the court will proceed to order service of the petition without a stay and any unexhausted claims will be subject to dismissal unless the respondent explicitly waives the exhaustion requirement.(Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH WAYNE ROBERSON,

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No. 2:17-cv-0531 AC P

Petitioner,
v.

ORDER

PEOPLE OF THE STATE OF
CALIFORNIA,
Respondent.

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By order filed June 13, 2017, the undersigned found that the petition appeared to be fully

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unexhausted and petitioner was ordered to either advise the court that he had exhausted his state

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court remedies or to file a motion for stay and abeyance under Rhines v. Weber, 544 U.S. 269

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(2005). ECF No. 6. Petitioner was advised of what he would need to show if he was going to

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seek a stay under Rhines. Id. He has now filed a motion requesting a stay under Rhines, but has

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not addressed any of the three factors necessary for obtaining such a stay. ECF No. 7.

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Accordingly, the motion will be denied and petitioner will be given an opportunity to file a

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motion for a Rhines stay that addresses the necessary factors.

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Petitioner is reminded that in order to obtain a stay under Rhines, he must show that (1)

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good cause exists for his failure to have first exhausted the claims in state court, (2) the claim or

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claims at issue potentially have merit, and (3) there has been no indication that he has

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intentionally delayed pursuing the litigation. Rhines, 544 U.S. at 277-78. If petitioner does not
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address each of these factors, the court will proceed to order service of the petition without a stay.

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Petitioner is advised that if he proceeds on the petition as is, based on his representation that the

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petition is fully unexhausted, the entire petition will be subject to dismissal as unexhausted absent

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the state’s express waiver of exhaustion and it is likely that the petition will ultimately be

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dismissed. Petitioner is further advised that he does not require and should not wait for an order

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from this court to exhaust his claims in state court.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion for stay (ECF No. 7) is denied without prejudice.

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2. Within thirty days of service of this order, petitioner may file a motion for stay and

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abeyance under Rhines while he returns to state court to exhaust his state court remedies.
3. If petitioner does not file a motion for stay or if he does not address all three Rhines

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factors, the court will proceed to order service of the petition without a stay and any unexhausted

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claims will be subject to dismissal unless the respondent explicitly waives the exhaustion

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requirement.

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DATED: July 13, 2017

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