Tsetse v. Neuschmid

Filing 22

ORDER DENYING STAY; SETTING DEADLINE TO FILE RENEWED MOTION OR NOTICE TO PROCEED WITH AMENDED PETITION by Judge William Alsup denying 21 Motion to Stay. (Attachments: # 1 Certificate/Proof of Service)Renewed Motion due by 10/17/2018.(tlS, COURT STAFF) (Filed on 9/19/2018)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Petitioner,

For the Northern District of California

United States District Court

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No. C 18-1876 WHA (PR)

PRINCE F. TSETSE,

ORDER DENYING STAY; SETTING
DEADLINE TO FILE RENEWED
MOTION OR NOTICE TO
PROCEED WITH AMENDED
PETITION

v.
ROBERT NEUSCHMID,
Respondent.
/

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Petitioner, a California prisoner proceeding pro se, filed this habeas petition under 28

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U.S.C. § 2254 challenging his conviction in state court. Petitioner has timely filed an amended

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petition claiming that he received ineffective assistance of counsel at trial, which claim was

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presented to and denied by the California Supreme Court. Petitioner has also

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Petitioner has also filed a motion to stay this case while he exhausts additional claims of

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prosecutorial misconduct, actual innocence, “suppression of motions,” and “trial court

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errors/structural errors.” A district court may stay a petition to allow the petitioner to exhaust

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claims in state court, provided the petitioner shows (1) “good cause” for his failure to exhaust

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his claims in state court; (2) that his unexhausted claims are not “plainly meritless”; and (3) that

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he has not engaged in “intentionally dilatory litigation tactics.” Rhines v. Webber 544 U.S. 269,

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278-79 (2005). Petitioner has not explained why he did not exhaust these claims in state court,

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let alone provided a good reason for such failure. He has also not shown why his unexhausted

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claims are plainly meritless, as there is no explanation what he means by “suppression of

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motions,” or which trial or structural errors he is asserting. Prosecutorial misconduct can

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warrant federal habeas relief, but there is no indication as to what form of misconduct took

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place. Accordingly, the motion to stay the petition is DENIED. Within 28 days of the date this

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order is filed, Petitioner shall either file a renewed motion to stay in which he makes the

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necessary showing for a stay described above, or file a notice that he no longer wants a stay and

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wishes to proceed with the amended petition.

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IT IS SO ORDERED.

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Dated: September 19 , 2018.
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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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