Opinion
No. CIV S-07-0404 GEB EFB P.
May 14, 2007
ORDER
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. He filed with his application for a writ of habeas corpus a request to stay these proceedings and hold them in abeyance while he exhausts available state remedies. On March 14, 2007, the court directed respondent to file a response to this request. On April 11, 2007, respondent filed a statement of no opposition to petitioner's request. The court may stay this action, holding it in abeyance while petitioner pursues unexhausted state remedies with respect to some claims, as long as he has shown good cause for his failure to exhaust those remedies as to those claims. Petitioner must also show that the unexhausted claims potentially have merit and that he has not intentionally engaged in dilatory litigation tactics. Rhines v. Weber, 544 U.S. 269, 277-278 (2005). A petitioner's reasonable confusion about the timeliness of his petitions in state court ordinarily constitute good cause for filing a "protective petition," i.e., a petition containing only exhausted claims, in federal court even though he continues to pursue other claims in state court. Pace v. Diguglielmo, 544 U.S. 408, 416-17 (2005). Petitioner asserts that he filed his habeas petition before exhausting available state remedies because he was unsure whether his federal petition would be timely if he waited. Respondent agrees that this concern justifies staying the proceedings and concedes that nothing suggests that petitioner is engaged in intentionally dilatory tactics. Respondent does not assert that the claims petitioner is exhausting are wholly lacking in merit.
Accordingly, it is ORDERED that:
1. Petitioner's February 28, 2007, request to stay this action and hold it in abeyance pending his exhaustion of available state remedies is granted.
2. Petitioner shall notify this court of the completion of that process within 45 days of the date an order resolving his state habeas petition is served.
3. The Clerk of the Court is directed to administratively close this case.