Thomas v. Cate

Filing 4

ORDER GRANTING 3 MOTION TO STAY HABEAS PROCEEDINGS; GRANTING[ 2] LEAVE TO PROCEED IN FORMA PAUPERIS; DIRECTING CLERK OF THE COURT TO ADMINISTRATIVELY CLOSE CASE UNTIL STAY IS LIFTED. Signed by Judge Claudia Wilken on 10/26/2011. (ndr, COURT STAFF) (Filed on 10/26/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LARRY DARNELL THOMAS,

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Petitioner,

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No. C 11-04709 CW (PR)
ORDER GRANTING MOTION TO STAY
HABEAS PROCEEDINGS; GRANTING
LEAVE TO PROCEED IN FORMA
PAUPERIS; DIRECTING CLERK OF
THE COURT TO ADMINISTRATIVELY
CLOSE CASE UNTIL STAY IS LIFTED

v.
MATTHEW CATE,
Respondent.

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(Docket nos. 2, 3)

Petitioner, a state prisoner, has filed this petition for a

United States District Court
For the Northern District of California

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writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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also has filed a motion to stay the petition while he exhausts his

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ineffective assistance of counsel claims in state court.

Petitioner

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

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petition containing both exhausted and unexhausted claims, to allow

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the petitioner to exhaust state court remedies as to those claims

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that have not yet been presented to the state's highest court.

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Rhines v. Webber, 544 U.S. 269, 277–78 (2005).

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Supreme Court discussed the stay-and-abeyance procedure, explaining

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that a stay and abeyance "is only appropriate when the district

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court determines there was good cause for the petitioner's failure

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to exhaust his claims first in state court," the claims are not

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meritless, and there are no intentionally dilatory litigation

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tactics by the petitioner.

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petitioner does not have to worry that his newly-exhausted claims

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will be barred by the statute of limitations because those claims

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remain pending in federal court.

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1139, 1140 (9th Cir. 2009).

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Id.

See

In Rhines, the

If the stay is granted, the

King v. Ryan, 564 F.3d 1133,

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Here, it appears that good cause exists for Petitioner's

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failure to exhaust his claims of ineffective assistance of trial

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and appellate counsel on direct appeal because such claims must be

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raised by way of state habeas corpus.

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cognizable bases for federal habeas relief.

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Petitioner's first habeas petition, and there is no evidence that

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he seeks the stay for improper purposes.

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GRANTS Petitioner's request for a stay.

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Moreover, the claims state
Further, this is

Accordingly, the Court

These proceedings are hereby STAYED pending Petitioner's

United States District Court
For the Northern District of California

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exhaustion of his state judicial remedies.

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take place in this action until the Court decides further action is

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appropriate or until Petitioner exhausts the unexhausted claims

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and, within thirty days of doing so, moves to reopen this action

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and lift the stay.

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Nothing further will

Petitioner's motion for leave to proceed in forma pauperis is
GRANTED.
The Clerk of the Court shall ADMINISTRATIVELY CLOSE the file
pending the stay of this action.

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This Order terminates Docket nos. 2 and 3.

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IT IS SO ORDERED.

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Dated: 10/26/2011
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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LARRY D THOMAS,
Case Number: CV11-04709 CW

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Plaintiff,
CERTIFICATE OF SERVICE
v.
MATTHEW CATE et al,
Defendant.

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United States District Court
For the Northern District of California

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on October 26, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located
in the Clerk's office.

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Larry Darnell Thomas V91749
3C05 104Low
CSP - Corcoran
P.O. Box 3471
Corcoran, CA 93212-3471

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Dated: October 26, 2011

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Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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