Estrada v. Neotti

Filing 9

ORDER setting briefing schedule on 7 Motion for Stay and abeyance. Petitioner shall file a brief in support of the Motion for stay and abeyance by 12/6/2010. (Response due by 12/27/2010. Reply due by 1/10/2011.) Signed by Magistrate Judge Cathy Ann Bencivengo on 11/2/10.(All non-registered users served via U.S. Mail Service)(lao)

-CAB Estrada v. Neotti

Doc. 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. GEORGE NEOTTI, Warden, Respondent. P e titio n e r is a state prisoner proceeding pro se and in forma pauperis with a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. On October 29, 2010, Petitioner f iled a Motion for Stay and Abeyance. Petitioner requests this Court to stay his Petition until af ter the state supreme court has issued a ruling on unexhausted claims presented to that court in a state habeas petition filed on September 28, 2010. Although it appears the claims presented to the state court involve allegations of ineffective assistance of counsel, Petitioner does not a rtic u la te the claims with any specificity. T h e Court will notify Petitioner of the requirements for demonstrating that the stay and a b e ya n c e procedure is appropriate in this case. Petitioner shall file a brief in support of the M o tio n for stay and abeyance addressing these requirements no later than December 6, 2010. R e sp o n d e n t shall file a response to the Motion for stay and abeyance no later than December 2 7 , 2010. Petitioner shall file his reply, if any, to the Respondent's brief no later than January 1 0 , 2011. JOEY MANUEL ESTRADA, Petitioner, ORDER SETTING BRIEFING SCHEDULE ON MOTION FOR STAY AND ABEYANCE Civil No. 10cv2014-DMS (CAB) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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10cv2014

Dockets.Justia.com

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In Rhines v. Weber 544 U.S. 269, 125 S.Ct. 1528 (2005) the Supreme Court held that D is tric t Courts have limited discretion to hold in abeyance a mixed habeas petition, that is, one c o n tain in g both exhausted and unexhausted claims, in order to permit a petitioner to return to s ta te court to exhaust additional claims while the federal proceedings are stayed. Rhines, 125 S .C t. at 1534-35. The Rhines Court held that "a stay and abeyance `should be available only in lim ite d circumstances,' and is appropriate only when the district court determines that there was `g o o d cause' for the failure to exhaust." Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005) (q u o tin g Rhines, 125 S.Ct. at 1535). The Court in Jackson noted that the Rhines holding applies to stays of mixed petitions, but that Rhines did not comment on the validity of the withdraw and a n d abeyance procedure approved of in Calderon v. United States District Court (Taylor), 134 F .3 d 981 (9th Cir. 1998) and Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), where unexhausted c laim s are withdrawn from a mixed petition and the resultant fully-exhausted petition is held in a b e ya n c e while petitioner returns to state court to exhaust the unexhausted claims. Jackson, 425 F . 3 d at 661. Because Jackson involved a mixed petition, the Court held that Rhines directly c o n tro lle d , and "left for another day the question of whether the stay standard announced by the S u p re m e Court in Rhines applies to our three-step stay-and-abeyance procedure." Id. Irrespective of whether Petitioner's motion for stay is subject to the restrictions placed o n this Court's discretion to issue a stay as set forth in Rhines, or is subject to the Ninth Circuit's w ith d ra w and abeyance procedure, Petitioner must satisfy the criteria for issuance of a stay. U n d e r either procedure he must demonstrate there are arguably meritorious claims which h e wishes to return to state court to exhaust and that he is diligently pursuing his state c o u r t remedies with respect to those claims. Jackson, 425 F.3d at 661; Anthony v. Cambra, 2 3 6 F.3d 568, 575 (9th Cir. 2000); Taylor, 134 F.3d at 987; see also Kelly, 315 F.3d at 1070. P e titio n e r shall address these concerns in his brief in support of his Motion. In addition, P e titio n e r should set forth facts in an attempt to demonstrate good cause for his failure to timely e x h a u s t the state court remedies with respect to his unexhausted claims. /// ///

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10cv2014

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D A T E D : November 2, 2010

C O N C L U S IO N AND ORDER I T IS ORDERED that Petitioner shall file a brief in support of his Motion for stay and a b e ya n c e no later than December 6, 2010, Respondent shall file a response to the Motion for s ta y and abeyance no later than December 27, 2010, and Petitioner shall file his reply, if any, to the Respondent's brief no later than January 10, 2011. IT IS SO ORDERED.

C A T H Y ANN BENCIVENGO U n ite d States Magistrate Judge

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10cv2014