Opinion
Case No. CV 15-8197-DDP(AJW)
11-04-2015
JONATHAN V. GONZALEZ, Petitioner, v. M.D. BITTER, Warden, Respondent.
MEMORANDUM AND ORDER DISMISSING PETITION WITHOUT PREJUDICE AND WITH LEAVE TO AMEND
On October 20, 2015, petitioner filed a document entitled "Notice for Motion for Stay and Abeyance." Petitioner seeks an order staying his petition for a writ of habeas corpus pending his exhaustion of state remedies. [Motion at 1]. Liberally construing the document as a petition for a writ of habeas corpus, it is subject to summary dismissal.
The petition fails to provide essential information - such as the conviction petitioner seeks to challenge and where that conviction occurred. It also fails to allege any claims for relief.
Although the Court has discretion to stay a mixed petition (containing both exhausted and unexhausted claims) to allow the petitioner to exhaust his state remedies, see Rhines v. Webber, 544 U.S. 269, 277-278 (2005), it does not have discretion to stay a petition containing only unexhausted claims. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to the petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust."); Lara v. Warden, 2013 WL 5522262, at *1 (C.D. Cal. Oct. 3, 2013) (stating that a federal court cannot stay a completely unexhausted petition). Because the petition does neither includes claim for relief nor indicates that any such claim has been exhausted, the Court cannot determine whether a stay is appropriate.
For these reasons, the petition is dismissed without prejudice and with leave to amend. Petitioner shall have twenty-eight (28) days from the date of this order within which to file an amended habeas petition on the forms provided by the clerk. The amended petition shall bear case number CV 15-8197-DDP(AJW) and shall set forth each of petitioner's claims for relief. It also shall indicate which claims have been presented to the California Supreme Court and which have not. At the time he files his petition, petitioner also may file a motion to stay the petition pending exhaustion of state remedies.
Petitioner is cautioned that failure to timely comply with this order will result in dismissal of this action without prejudice.
It is so ordered.
Dated: November 4, 2015
/s/_________
Andrew J. Wistrich
United States Magistrate Judge