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HOUK v. WALKER

United States District Court, E.D. California
May 28, 2008
No. CIV S-08-1100 LKK DAD P (E.D. Cal. May. 28, 2008)

Opinion

No. CIV S-08-1100 LKK DAD P.

May 28, 2008


ORDER


Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to stay these proceedings. Petitioner has paid the filing fee.

In his application, petitioner challenges a judgment of conviction entered in the Yuba County Superior Court in 2005. Petitioner's single claim is that he was denied his constitutional right to effective assistance of counsel because his attorney failed to move to suppress evidence found in petitioner's truck on the grounds that his arrest and the search of his vehicle were not supported by probable cause. Petitioner requests a stay of these proceedings in order to exhaust five additional grounds for relief.

The United States Supreme Court has affirmed the district court's discretion to stay a federal habeas proceeding to allow a petitioner to present unexhausted claims to the state court where there is good cause for the petitioner's failure to exhaust all claims in state court before filing a federal habeas petition. Rhines, 544 U.S. at 277. See also Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000) (authorizing district courts to stay fully exhausted federal petitions pending exhaustion of other claims); Calderon v. United States Dist. Court (Taylor), 134 F.3d 981, 987-88 (9th Cir. 1998). This discretion to issue a stay extends to mixed petitions. Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005) ("Rhines concluded that a district court has discretion to stay a mixed petition to allow a petitioner time to return to state court to present unexhausted claims."). The Supreme Court cautioned, however, that "stay and abeyance should be available only in limited circumstances" and that a stay "is only appropriate when the district court determines there is good cause for the petitioner's failure to exhaust his claims first in state court." 544 U.S. at 277. Even if a petitioner shows good cause, the district court should not grant a stay if the unexhausted claims are plainly meritless. Id. Finally, federal proceedings may not be stayed indefinitely, and reasonable time limits must be imposed on a petitioner's return to state court to exhaust additional claims. Id. at 277-78.

Petitioner's request for a stay is vague and conclusory and does not provide sufficient facts and information to satisfy the requirements of Rhines. Accordingly, the court is unable to determine whether petitioner had good cause for failing to exhaust all of his claims before filing this action, whether petitioner's unexhausted claims are potentially meritorious, or whether petitioner has been diligent in pursuing his unexhausted claims. See Taylor, 134 F.3d at 987 nn. 8 11 (failure to make a showing of diligence in pursuing additional claims may foreclose a stay). For these reasons, petitioner's request will be denied without prejudice to the filing of a new motion for a stay and abeyance.

Petitioner will be granted thirty days to file a new motion for a stay and abeyance. The motion must (1) show good cause for petitioner's failure to exhaust all claims prior to filing this action, (2) demonstrate why each of petitioner's unexhausted claims is potentially meritorious, (3) describe the status of any state court proceedings on the unexhausted claims, and (4) demonstrate that petitioner has acted with diligence in pursuing additional claims.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's May 20, 2008 request to stay these proceedings is denied without prejudice; and

2. Petitioner is granted thirty days from the date of this order in which to file and serve a renewed motion for a stay and abeyance addressing the issues set forth above.


Summaries of

HOUK v. WALKER

United States District Court, E.D. California
May 28, 2008
No. CIV S-08-1100 LKK DAD P (E.D. Cal. May. 28, 2008)
Case details for

HOUK v. WALKER

Case Details

Full title:LARRY N. HOUK, Petitioner, v. JIMMY WALKER, Warden, Respondent

Court:United States District Court, E.D. California

Date published: May 28, 2008

Citations

No. CIV S-08-1100 LKK DAD P (E.D. Cal. May. 28, 2008)