Stanley v. State of California

Filing 10

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/30/2017 ORDERING petitioner may file a request for a stay and abeyance addressing each of the three Rhines factors described in this order within 30 days from the date of this order; or, p etitioner may file a notice of exhaustion if he has fully exhausted his state court remedies. Respondent may file an opposition to the request for a stay within 14 days from the date of filing of the stay request. The Clerk shall substitute Suzanne M. Peery, Warden of CCC, as respondent.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE STANLEY,

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No. 2:17-cv-01486 CKD P

Petitioner,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus

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

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dismiss the petition based on the failure to exhaust state court remedies. ECF No. 7. In his

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application for habeas relief, petitioner states that he “is presently in the process of exhausting

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each of the claims in the petition before the state courts. Earlier exhaustion was prevented by

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multiple circumstances.” ECF No. 1 at 5.

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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. Petitioner file a request for a stay and abeyance addressing each of the three Rhines

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factors described above within 30 days from the date of this order; or,
2. Petitioner may file a notice of exhaustion if he has fully exhausted his state court
remedies;
3. Respondent may file an opposition to the request for a stay within 14 days from the
date of filing of the stay request; and,
4. The Clerk of Court is directed to substitute Suzanne M. Peery, Warden of the

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California Correctional Center, as respondent in this matter pursuant to Rule 25(d) of the Federal

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Rules of Civil Procedure.

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Dated: November 30, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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12/stan1486.briefmotion2stay.docx

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