Lee v. Harris

Filing 17

ORDER GRANTING 16 RESPONDENTS REQUEST FOR SUPPLEMENTAL BRIEFING. Signed by Judge Beth Labson Freeman on 3/18/2016. (blflc3S, COURT STAFF) (Filed on 3/18/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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CHING LEE,

Case No. 15-cv-05316-BLF
Petitioner,

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v.
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KAMALA D. HARRIS,
Respondent.

ORDER GRANTING RESPONDENT’S
REQUEST FOR SUPPLEMENTAL
BRIEFING
[Re: ECF 16]

United States District Court
Northern District of California

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Before the Court is petitioner’s motion for a stay and abeyance pursuant to Rhines

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v. Weber, 544 U.S. 269 (2005), pending exhaustion of the claims contained in his wholly

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unexhausted petition. ECF 6. After Respondent filed an opposition brief, the Ninth Circuit issued

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a decision in Mena v. Long, ___ F.3d ___, 2016 WL 625405, at *1 (9th Cir. 2016), in which it

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held “that the Rhines stay-and-abeyance procedure is not limited to mixed petitions, and a district

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court may stay a petition that raises only unexhausted claims.” As a result, the Court requested

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supplemental briefing on the impact of Mena on the pending motion. ECF 15.
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On March 18, 2016, Respondent filed a supplemental brief that acknowledged “[b]y

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extending the holding of Rhines to wholly unexhausted petitions, Mena has dramatically altered

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the legal landscape in this circuit with regard to such petitions.” Respondent understood the

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Court’s request for supplemental briefing as being limited to the impact of Mena on the pending

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motion, and not covering a discussion of whether a stay is appropriate under the factors set forth in
Rhines. See Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008) (“Under Rhines, a district

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court must stay a mixed petition only if: (1) the petitioner has ‘good cause’ for his failure to

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exhaust his claims in state court; (2) the unexhausted claims are potentially meritorious; and (3)

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there is no indication that the petitioner intentionally engaged in dilatory litigation tactics.”).

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Thus, Respondent asks for leave to file a supplemental opposition to the motion for a stay and

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abeyance in order to address the Rhines factors. Respondent also notes that Petitioner should have

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the opportunity to file a reply brief to respond to arguments raised in Respondent’s supplemental

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opposition.

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Accordingly, the Court GRANTS Respondent’s request. Respondent shall file a
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supplemental opposition brief of no more than five pages on or before April 1, 2016 and
Petitioner shall file a supplemental reply brief of no more than five pages on or before April 8,

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United States District Court
Northern District of California

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2016.

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IT IS SO ORDERED.

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Dated: March 18, 2016
______________________________________
BETH LABSON FREEMAN
United States District Judge

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