Gonzalez v. Myrick

Filing 9

ORDER: Respondent's Motion to Dismiss (ECF No. 8 ) is GRANTED, in part. IT IS ORDERED that this action is STAYED until 30 days after the conclusion of petitioner's post conviction proceedings in state court. The parties shall notify the court of the status of those proceedings within 90 days from the date of this order. Signed on 4/11/2017 by Magistrate Judge Thomas M. Coffin. (copy mailed to petitioner) (kms)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

NATHAN GONZALEZ,

Case No. 2:16-cv-01983-TC

Petitioner,

ORDER

V.

JOHN MYRICK,
Respondent.

COFFIN, Magistrate Judge:
Petitioner, an inmate at Two Rivers Correctional Institution appearing pro se, brings this
habeas corpus action pursuant to 28 U.S.C. § 2254. Respondent moves for dismissal on the basis
that petitioner currently has a post-conviction petition pending in state court and has not
exhausted his available state remedies before bringing the instant federal habeas petition.
A state prisoner must exhaust all available state court remedies either on direct appeal or
through post-conviction proceedings before a federal court may consider granting habeas corpus
relief. 28 U.S.C. § 2254(b)(l)(A); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004). Petitioner
has not responded to or otherwise opposed respondent's motion. Based on the attachments to

1 -ORDER

respondent's motion, it is clear that petitioner has not exhausted his state remedies. See Resp.' s
Motion, Attachment D. However, instead of dismissing the petition, respondent concedes that the
court has discretion to stay the proceedings under the circumstances in this case. Resp.' s Motion
at 5 n.2.
Accordingly, respondent's Motion to Dismiss (ECF No. 8) is GRANTED, in part. IT IS
ORDERED that this action is STAYED until 30 days after the conclusion of petitioner's postconviction proceedings in state court. The parties shall notify the court of the status of those
proceedings within 90 days from the date of this order.
IT IS SO ORDERED.
DATED

this~ day of April, 2017.

United States Magistrate Judge

2-0RDER