Blackgold v. Madden et al

Filing 6

ORDER Denying #5 Request for Stay and Abeyance without Prejudice to Renewal upon Filing of First Amended Petition. Signed by Judge Michael M. Anello on 11/17/2021. (All non-registered users served via U.S. Mail Service and Petitioner mailed blank First Amended Petition under 28 U.S.C. 2254.) (tcf)

Case 3:21-cv-01801-MMA-JLB Document 6 Filed 11/17/21 PageID.35 Page 1 of 2

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SUTEN BLACKGOLD,

Case No.: 21-cv-1801 MMA (JLB)
Petitioner,

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v.

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RAYMOND MADDEN, et al.,

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Respondents.

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ORDER DENYING REQUEST FOR STAY
AND ABEYANCE WITHOUT PREJUDICE
TO RENEWAL UPON FILING OF FIRST
AMENDED PETITION
[Doc. No. 5]

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On October 21, 2021, Petitioner, a state prisoner proceeding pro se, filed a Petition

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for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 along with a motion to proceed

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in forma pauperis. See Doc. Nos. 1–2. On October 26, 2021, the Court issued an Order

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granting Petitioner’s motion to proceed in forma pauperis and dismissing the Petition

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without prejudice for failure to allege exhaustion of state judicial remedies and stated: “If

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Petitioner wishes to proceed with this habeas action, Petitioner must file a First Amended

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Petition that cures the pleading deficiencies outlined in this Order on or before December

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27, 2021.” Doc. No. 3 at 4.

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On November 16, 2021, nunc pro tunc to November 15, 2021, Petitioner filed a
document entitled “Requesting To Stay And Abeyence,” [sic] indicating he was aware of

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21-cv-1801-MMA (JLB)

Case 3:21-cv-01801-MMA-JLB Document 6 Filed 11/17/21 PageID.36 Page 2 of 2

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the December 27, 2021 deadline to file a First Amended Petition and requesting a stay

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and abeyance for purpose of exhausting state judicial remedies. Doc. No. 4 at 1.

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The Court does not currently have jurisdiction to consider Petitioner’s request for

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stay and abeyance of his federal proceedings because there is no Petition on file and the

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case has been dismissed without prejudice. The Court dismissed the Petition in the

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October 26, 2021, Order and Petitioner has not yet filed a First Amended Petition.

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Accordingly, the Court DENIES Petitioner’s request for stay and abeyance without

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prejudice to Petitioner renewing the request upon the filing of a First Amended Petition.

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Because Petitioner has not identified an exhausted claim, in order to proceed with

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this habeas action, Petitioner may file a First Amended Petition on or before December

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27, 2021, along with a renewed request for stay and abeyance identifying which claims

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Petitioner seeks to exhaust in state court. See Rhines v. Weber, 544 U.S. 269, 277–78

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(2005) (explaining that to warrant stay and abeyance, a habeas petitioner must

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demonstrate there are arguably meritorious claim(s) which he wishes to return to state

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court to exhaust, that he is diligently pursuing his state court remedies with respect to

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those claim(s), and that good cause exists for his failure to timely exhaust his state court

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remedies); see also Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (“[A] district court

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has the discretion to stay and hold in abeyance fully unexhausted petitions under the

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circumstances set forth in Rhines.”). The Court therefore DIRECTS the Clerk of Court

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to mail Petitioner a blank Amended Petition for Writ of Habeas Corpus pursuant to 28

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U.S.C § 2254 together with a copy of this Order.

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IT IS SO ORDERED.
Dated: November 17, 2021

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_____________________________

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HON. MICHAEL M. ANELLO
United States District Judge

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21-cv-1801-MMA (JLB)