Opinion
No. CIV S-05-1223 DFL DAD P.
June 11, 2007
ORDER
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition has been fully briefed and is submitted. Before the court is petitioner's May 15, 2007 document styled, "Notice Of Motion And Motion Seeking Leave To Amended [sic] Petition For Writ Of Habeas Corpus Raising Newly Unexhausted Claims (Rule Of Civil Procedure Rule 15(a) and (d)). Evidentiary Hearing Requested."
The court has provided petitioner numerous opportunities to explain what new claims he seeks to raise and to move for a stay and abeyance. On February 9, 2007, petitioner filed his first motion requesting leave to file an amended petition to include newly exhausted claims. The court examined petitioner's exhibits, including the first page of a recently filed habeas petition with the Sacramento County Superior Court, and determined that it was not clear whether the new claims were exhausted. See Order, filed 2/22/07. The court advised petitioner to file a new motion for leave to amend which included his proposed amended petition. (Id.) In the event the new claims were unexhausted, petitioner was advised that he should file a motion for a stay and abeyance which demonstrated good cause for the stay as required by Rhines v. Weber, 544 U.S. 269, 277 (2005). (Id.) On March 9, 2007, petitioner filed a motion for a stay and abeyance; however, he failed to provide the information as directed by the court in its February 22 order. Specifically, petitioner did not attempt to make a showing of good cause for his failure to exhaust all of his claims before filing his federal petition. Accordingly, the court denied the motion but granted petitioner a final opportunity to file a proper motion for a stay and abeyance which addressed the requirements set out by the Supreme Court inRhines. See Order filed 4/19/07.
Petitioner's pending motion again merely requests leave to amend so that he may "submit newly unexhausted claims to his current pending petition for writ of habeas corpus." (Mot., filed 5/15/07, at 1.) Petitioner has previously been advised that if his proposed new claims are unexhausted, he must file a motion for a stay and abeyance which satisfies the requirements set outRhines along with a proposed amended petition. Petitioner has failed to do so. Specifically, petitioner has failed to provide the court with a proposed amended petition containing all of his claims as directed. He has also failed to move for stay and abeyance and has not addressed the reasons for his failure to exhaust all of his claims before filing his federal petition. Therefore, petitioner's motion for leave to amend will be denied.
Accordingly, IT IS HEREBY ORDERED that petitioner's May 15, 2007 motion for leave to amend his petition is denied without prejudice.