Opinion
21-cv-1801 MMA (JLB)
11-17-2021
SUTEN BLACKGOLD, Petitioner, v. RAYMOND MADDEN, et al., Respondents.
ORDER DENYING REQUEST FOR STAY AND ABEYANCE WITHOUT PREJUDICE TO RENEWAL UPON FILING OF FIRST AMENDED PETITION
[DOC. NO. 5]
HON. MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE.
On October 21, 2021, Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 along with a motion to proceed in forma pauperis. See Doc. Nos. 1-2. On October 26, 2021, the Court issued an Order granting Petitioner's motion to proceed in forma pauperis and dismissing the Petition without prejudice for failure to allege exhaustion of state judicial remedies and stated: “If Petitioner wishes to proceed with this habeas action, Petitioner must file a First Amended Petition that cures the pleading deficiencies outlined in this Order on or before December 27, 2021 .” Doc. No. 3 at 4.
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 the December 27, 2021 deadline to file a First Amended Petition and requesting a stay and abeyance for purpose of exhausting state judicial remedies. Doc. No. 4 at 1.
The Court does not currently have jurisdiction to consider Petitioner's request for stay and abeyance of his federal proceedings because there is no Petition on file and the case has been dismissed without prejudice. The Court dismissed the Petition in the October 26, 2021, Order and Petitioner has not yet filed a First Amended Petition. Accordingly, the Court DENIES Petitioner's request for stay and abeyance without prejudice to Petitioner renewing the request upon the filing of a First Amended Petition.
Because Petitioner has not identified an exhausted claim, in order to proceed with this habeas action, Petitioner may file a First Amended Petition on or before December 27, 2021, along with a renewed request for stay and abeyance identifying which claims Petitioner seeks to exhaust in state court. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (explaining that to warrant stay and abeyance, a habeas petitioner must demonstrate there are arguably meritorious claim(s) which he wishes to return to state court to exhaust, that he is diligently pursuing his state court remedies with respect to those claim(s), and that good cause exists for his failure to timely exhaust his state court remedies); see also Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (“[A] district court has the discretion to stay and hold in abeyance fully unexhausted petitions under the circumstances set forth in Rhines.”). The Court therefore DIRECTS the Clerk of Court to mail Petitioner a blank Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C § 2254 together with a copy of this Order.
IT IS SO ORDERED.