Calhoun v. State of Washington

Filing 10

ORDER denying 3 Motion to Stay; denying 8 Motion to Stay by Judge J Richard Creatura.(JLP)(copy mailed to plaintiff)

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 This matter is before the court on Petitioner's motions to stay the matter (Dkt. # 3 and 8). Petitioner asks the court to stay these proceedings. Plaintiff appears to be asking for a stay until this court appoints counsel, or he has access to a library. Plaintiff is currently at the Pierce County Jail for resentencing. Having reviewed the record, the court finds and orders as follows. 1. District courts may use a "stay-and-abeyance" procedure in which the court dismisses the unexhausted claims while staying the remaining exhausted claims. Rhines v. Weber, 544 U.S. 269, 275-77; Calderon v. United States District Court (Taylor), 134 F.3d 981, 988 (9th Cir.1998). Once the petitioner has exhausted the previously-unexhausted claims in state court, the court may allow the petitioner to amend the original federal petition by adding the newlyORDER - 1 v. STATE OF WASHINGTON, Respondent. ABDUL-KAHLIF CALHOUN, Petitioner, Case No. C09-5211RJB ORDER UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

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exhausted claims, which "relate back" to the original petition, pursuant to Fed. R. Civ. P. 15(c). Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir.2003). This procedure assumes special importance in light of AEDPA's one-year statute of limitations, and it advances our policy of deciding cases on the merits, rather than on procedural grounds. James v. Pliler, 269 F.3d 1124, 1126 (9th Cir. 2001). 2. Plaintiff has not shown good cause warranting use of the "stay and abeyance" procedure in this matter. Following the guidelines noted above, the court DENIES petitioner's motions to stay these proceedings, (Dkt. # 3 and 8). 3. Plaintiff's amended petition is due on or before June 26, 2009. 4. The Clerk shall direct copies of this Order to petitioner. DATED this 3rd day of June, 2009.

A
J. Richard Creatura United States Magistrate Judge

ORDER - 2