Redick v. Biter

Filing 3

ORDER by Judge William Alsup denying 2 Motion to Stay Petition without Prejudice. (Attachments: # 1 Certificate of Service) (dt, COURT STAFF) (Filed on 2/1/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TYLER REDICK,

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For the Northern District of California

United States District Court

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No. C 12-0337 WHA (PR)

Petitioner,

ORDER DENYING MOTION TO
STAY PETITION WITHOUT
PREJUDICE

v.

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MARTIN BITER, Warden,

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Respondent.

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(Docket No. 2)
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Petitioner, a prisoner of the State of California, filed a habeas corpus petition pursuant to

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28 U.S.C. 2254. The petition sets forth five claims challenging the constitutionality of

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petitioner’s conviction in state court. He claims: (1) that the sentence he received constitutes

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cruel and unusual punishment; (2) theat he received ineffective assistance of trial counsel; (3)

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the prosecution withheld important evidence until the time of trial, preventing petitioner from

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preparing and presenting a meaningful defense, from effectively conducting plea negotiations

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and from having a sufficient basis for deciding whether or not to plead guilty; (4) that several

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witnesses testified falsely; and (5) the prosecution knowingly presented false testimony by its

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principal witnesses.

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Along with his petition, petitioner has filed a motion for a stay of this case while he

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exhausts claims two through five, above, in the state courts. To obtain a stay, petitioner must

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show that the claims he wishes to exhaust are potentially meritorious, and show cause for his

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failure to exhaust them prior to arriving in federal court. Rhines v. Webber 544 U.S. 269, 278-

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79 (2005). Petitioner’s claims, when liberally construed, state a cognizable claim for relief. As

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such, he has shown that they are “potentially meritorious” within the meaning of Rhines.

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Petitioner has not, however, even attempted to explain why he did not raise his claims and

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exhaust them prior to arriving in federal court. He states that the statute of limitations for filing

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his federal petition has nearly run out. This does not, in and of itself, constitute good cause for

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his unexplained failure to exhaust his claims earlier, before he nearly ran out of time.

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Consequently, the motion for a stay is DENIED without prejudice to filing another such
motion within 30 days that makes the showing required by Rhines.
If petitioner does not make the required showing for a stay within that time, petitioner
will not be allowed a stay, and this matter will proceed based solely upon the exhausted
claim(s) set forth in the petition while any unexhausted claims will be stricken. In lieu of either

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For the Northern District of California

United States District Court

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seeking a stay or having his unexhausted claims stricken, petitioner may of course choose to

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voluntarily dismiss the entire petition without prejudice to refiling it when all of the claims are

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exhausted.

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IT IS SO ORDERED.
Dated: January

31 , 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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