Opinion
No. CIV S-05-1223 DFL DAD P.
April 18, 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. After this case was fully briefed and submitted, on February 9, 2007, petitioner filed a motion for leave to file an amended petition to present newly exhausted claims. On February 22, 2007, the motion was denied without prejudice. Petitioner was ordered to file a new motion for leave to file an amended petition and a proposed amended petition which included all of his claims. In the event that petitioner's new claims were not exhausted, the court ordered petitioner to file a motion for a stay and abeyance which demonstrated good cause as set forth inRhines v. Weber, 544 U.S. 269, 277 (2005). Before the court is petitioner's motion styled, "Motion For Proposed Amended Petition For A Stay And Abeyance."
Petitioner asserts that he has an ineffective assistance of appellate counsel claim pending before the Sacramento County Superior Court. Petitioner requests a stay and abeyance; however, he has not provided the necessary information described in the court's February 22, 2007 order. In this regard, that prior order cautioned petitioner that stay and abeyance is "available only in limited circumstances" and that he must demonstrate in his motion that there is good cause for his failure to exhaust all claims in state court before he filed his federal habeas petition. See Rhines v. Weber, 544 U.S. 269, 277 (2005). While petitioner's motion does identify the new claim he is currently exhausting, it does not address the issue of good cause for his failure to exhaust all claims in state court before he filed his federal petition. Therefore, petitioner's motion will be denied. However, in the interest of justice, the court will provide petitioner with a final opportunity to file a proper motion for a stay and abeyance.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's March 9, 2007 motion for a stay and abeyance is denied without prejudice; and
2. Within thirty days from the service of this order, petitioner shall file and serve a motion for a stay and abeyance in accordance with the court's February 22, 2007 order; respondent's opposition or statement of non-opposition to the motion shall be filed thirty days thereafter.