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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*E-Filed 10/17/11*

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UNITED STATES DISTRICT COURT

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United States District Court
For the Northern District of California

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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CHARLES JOSEPH CARTER,
Petitioner,

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No. C 11-1242 RS (PR)
ORDER STAYING ACTION

v.
GARY SWARTHOUT, Warden,
Respondent.
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This is a federal habeas corpus action filed pursuant to 28 U.S.C. § 2254 by a pro se

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state prisoner. Petitioner moves to amend the petition to include his unexhausted claims,

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which were dismissed by Court order (Docket No. 11), and to stay the petition while he

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exhausts some claims in state court. See Docket No. 12.

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A district court may stay a mixed habeas petition, i.e., a petition containing both

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exhausted and unexhausted claims, to allow the petitioner to exhaust state court remedies as

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to those claims that have not yet been presented to the state’s highest court. See Rhines v.

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Webber, 544 U.S. 269, 277–78 (2005). In Rhines, the Supreme Court discussed the

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stay-and-abeyance procedure, explaining that a stay and abeyance “is only appropriate when

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No. C 11-1242 RS (PR)
ORDER STAYING PETITION

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the district court determines there was good cause for the petitioner’s failure to exhaust his

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claims first in state court,” the claims are not meritless, and there are no intentionally dilatory

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litigation tactics by the petitioner. Id. If the stay is granted, the petitioner does not have to

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worry that his newly-exhausted claims will be barred by the statute of limitations because

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those claims remain pending in federal court. King v. Ryan, 564 F.3d 1133, 1139, 1140. (9th

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Cir. 2009).

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Petitioner’s motion to amend the petition to include the unexhausted claims, and his

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motion to stay the newly-amended petition under Rhines, are GRANTED, good cause

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appearing therefor. Nothing further will take place in this action until the Court decides

United States District Court
For the Northern District of California

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further action is appropriate, or until petitioner exhausts the unexhausted claims and, within

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thirty days of doing so, moves to reopen this action, and lift the stay.

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For the foregoing reasons, the above-titled action is hereby STAYED until petitioner

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files a motion to reopen as described above. The Clerk shall ADMINISTRATIVELY

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CLOSE the file pending the stay of this action, and terminate Docket No. 12.

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IT IS SO ORDERED.
DATED: October 17, 2011
RICHARD SEEBORG
United States District Judge

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No. C 11-1242 RS (PR)
ORDER STAYING PETITION