Castillo #541767 v. Smith
Filing
7
ORDER: granting 6 motion to stay; dismissing without prejudice unexhausted claims of petitioner for lack of exhaustion of state court remedies; remaining exhausted claims are stayed and the case is administratively closed until petitioner files a timely motion to amend the habeas petition to include any subsequently exhausted claims; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, kw)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JONATHAN CASTILLO,
Petitioner,
Case No. 1:13-cv-59
v.
Honorable Paul L. Maloney
WILLIE O. SMITH,
Respondent.
____________________________________/
ORDER TO STAY
Pursuant to this Court’s opinion and order of January 29, 2013, Petitioner has filed
a motion for stay and abeyance, in which he avers cause for his failure to exhaust and requests a stay
of this action to exhaust his unexhausted claims in state proceedings. Under Rhines v. Weber, 544
U.S. 269 (2005), such a stay should only be granted if (1) there is good cause for Petitioner’s failure
to exhaust the unexhausted claims, (2) the unexhausted claims are not plainly meritless, and (3) there
is no indication that Petitioner has engaged in abusive or dilatory litigation tactics. Id. at 277-78.
Upon review, the Court finds that a stay is warranted. Therefore, pursuant to the Sixth Circuit’s
direction in Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002), and the Court’s analysis in its
January 29, 2013 opinion,
IT IS ORDERED that Petitioner shall have thirty (30) days from the date of this
order in which to file a motion for relief from judgment in the Berrien County Circuit Court setting
forth any unexhausted claims that he intends to pursue in his habeas petition.
IT IS FURTHER ORDERED that Petitioner’s action is hereby stayed until
Petitioner files a motion to amend his petition to include any subsequently exhausted claims. Such
motion must be filed not later than 30 days after a final decision by the Michigan Supreme Court
on Petitioner’s unexhausted claims and shall include a description of the newly exhausted claims
and the dates and substance of decision at each step of state-court review.
IT IS FURTHER ORDERED that if Petitioner fails to comply with the deadlines
imposed in this order, the Court may dismiss the petition.
IT IS FURTHER ORDERED that Petitioner shall advise the Court of any change
of address occurring during the pendency of the stay.
IT IS FURTHER ORDERED that this case shall be administratively closed until
such time as Petitioner files a motion to amend his petition in accordance with the procedures set
forth in this order.
Dated:
April 24, 2013
/s/ Paul L. Maloney
Chief United States District Judge
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