Carter v. People of the State California

Filing 13

ORDER STAYING ACTION. Signed by Judge Richard Seeborg on 10/17/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 10/17/2011)

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1 2 *E-Filed 10/17/11* 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 10 United States District Court For the Northern District of California 9 NORTHERN DISTRICT OF CALIFORNIA 11 SAN FRANCISCO DIVISION 12 13 CHARLES JOSEPH CARTER, Petitioner, 14 15 16 17 No. C 11-1242 RS (PR) ORDER STAYING ACTION v. GARY SWARTHOUT, Warden, Respondent. / 18 19 This is a federal habeas corpus action filed pursuant to 28 U.S.C. § 2254 by a pro se 20 state prisoner. Petitioner moves to amend the petition to include his unexhausted claims, 21 which were dismissed by Court order (Docket No. 11), and to stay the petition while he 22 exhausts some claims in state court. See Docket No. 12. 23 A district court may stay a mixed habeas petition, i.e., a petition containing both 24 exhausted and unexhausted claims, to allow the petitioner to exhaust state court remedies as 25 to those claims that have not yet been presented to the state’s highest court. See Rhines v. 26 Webber, 544 U.S. 269, 277–78 (2005). In Rhines, the Supreme Court discussed the 27 stay-and-abeyance procedure, explaining that a stay and abeyance “is only appropriate when 28 No. C 11-1242 RS (PR) ORDER STAYING PETITION 1 the district court determines there was good cause for the petitioner’s failure to exhaust his 2 claims first in state court,” the claims are not meritless, and there are no intentionally dilatory 3 litigation tactics by the petitioner. Id. If the stay is granted, the petitioner does not have to 4 worry that his newly-exhausted claims will be barred by the statute of limitations because 5 those claims remain pending in federal court. King v. Ryan, 564 F.3d 1133, 1139, 1140. (9th 6 Cir. 2009). 7 Petitioner’s motion to amend the petition to include the unexhausted claims, and his 8 motion to stay the newly-amended petition under Rhines, are GRANTED, good cause 9 appearing therefor. Nothing further will take place in this action until the Court decides United States District Court For the Northern District of California 10 further action is appropriate, or until petitioner exhausts the unexhausted claims and, within 11 thirty days of doing so, moves to reopen this action, and lift the stay. 12 For the foregoing reasons, the above-titled action is hereby STAYED until petitioner 13 files a motion to reopen as described above. The Clerk shall ADMINISTRATIVELY 14 CLOSE the file pending the stay of this action, and terminate Docket No. 12. 15 16 IT IS SO ORDERED. DATED: October 17, 2011 RICHARD SEEBORG United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 2 No. C 11-1242 RS (PR) ORDER STAYING PETITION

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