Opinion
No. C 04-1009 SI (pr).
August 2, 2004
ORDER FOR STAY AND TO ADMINISTRATIVELY CLOSE THE CASE
Petitioner filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction in the Santa Clara County Superior Court. Upon initial review, the court noted that the petition appeared to have a problem in that petitioner indicated he wanted to present a claim to this court that had not been presented first to the California Supreme Court for its consideration. The court required petitioner to choose how he wanted to cure the problem of the unexhausted claim. Petitioner elected to request a stay of the proceedings while he exhausts his unexhausted claim in the California Supreme Court. (Docket # 7.)
Petitioner's request for a stay is GRANTED. See Olvera v. Giurbino, 371 F.3d 569, 473-74 (9th Cir. 2004); Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir. 2003). This action is STAYED, and the action is ADMINISTRATIVELY CLOSED. Nothing further will take place in this action until petitioner exhausts the unexhausted claim, and, within thirty days of doing so, moves to reopen the action, lift the court's stay and amend the stayed petition to add the newly-exhausted claim. If petitioner does not return within thirty days of exhausting the unexhausted claims, the action may be dismissed. See id. at 1071 (indicating that thirty days is sufficient time for a petitioner to return to federal court following final action by the state courts).
Petitioner also applied for an enlargement of time to file his election. The application is DENIED as unnecessary. (Docket #8.) Petitioner filed an election to request the stay eleven days before he sought an enlargement of time.
IT IS SO ORDERED.