Cherveny v. Arnold
Filing
6
ORDER signed by Magistrate Judge Gregory G. Hollows on 1/23/2018 ORDERING Petitioner to, within 30 days of the date of this Order, explain why the state supreme court habeas petition referred to in this Order does not constitute exhaustion. (Henshaw, R)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
MICHAEL LAWRENCE CHERVENY,
12
13
14
15
No. 2:17-cv-2528-GGH
Petitioner,
v.
ORDER
ERIC ARNOLD, Warden,
Respondent.
16
17
Petitioner filed his petition for a Writ of Habeas Corpus on December 1, 2017. ECF No.
18
1. On December 14, 2017 this court directed that petitioner either submit an Application to
19
Proceed Informa Pauperis or pay the filing fee required by the Court. ECF No. 3. On January 2,
20
2018 petitioner paid the filing fee. On January 5, 2017, petitioner filed a Motion for Stay and
21
Abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005) in order to permit him to exhaust his
22
state remedies by petitioning the California Supreme Court for a writ. ECF No. 5. However,
23
petitioner states in the petition at page 5 that he filed a petition for habeas corpus in the California
24
Supreme Court, and that Court’s records reflect that a habeas matter filed under Case Number
25
S215518 was resolved by the Court, and the case was closed on December 23, 2013.
26
Under Rhines, a district court may stay a mixed petition to allow a petitioner to present an
27
unexhausted claim to the state courts. Rhines at 277. Here, however, it appears that petitioner
28
may have completed his exhaustion through the habeas petition referred to above. Thus stay and
1
1
abeyance would not be appropriate in this case. If, however, the identified state habeas petition
2
related to a different conviction than the one at issue in the instant case, or different issues in the
3
same case as currently at bar, stay and abeyance may be considered by the court.
4
The court will need clarification from petitioner of how the fact that he identifies a prior
5
habeas in his current petition at ECF No. 1 at page 5, and the state supreme court has a record of
6
this case as stated above, doesn’t result in a conclusion that his state remedies have been fully
7
exhausted.
8
9
In light of the foregoing IT IS HEREBY ORDERED that: Petitioner shall, within 30 days
of the date of this Order, explain why the state supreme court habeas petition referred to above
10
does not constitute exhaustion.
11
IT IS SO ORDERED.
12
13
Dated: January 23, 2018
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?