Opinion
No. CIV S-06-2675 GEB KJM P.
April 9, 2007
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding through counsel, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee.
Petitioner asks that the court stay this matter while he exhausts state court remedies with respect to a single claim. He has already begun the exhaustion process.
Petitioner reasonably asserts that he is not certain whether California courts will find that his state petitions are untimely. In Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005), the Supreme Court found that a habeas petitioner's reasonable confusion about whether a state filing would be timely would ordinarily constitute good cause for the petitioner to file in federal court. Considering this, and that petitioner's unexhausted claim is potentially meritorious, the court will recommend that petitioner's request for a stay be granted. See Rhines v. Weber, 544 U.S. 269, 277 (2005).
Petitioner's unexhausted claim is that his sentence is unlawful because one of his prior convictions, deemed a "strike" under California "Three Strikes Law," is not in fact a "strike."
In accordance with the above, IT IS HEREBY RECOMMENDED that:
1. Petitioner's December 9, 2006 request for a stay be granted;
2. This matter be stayed;
3. The Clerk of the Court be directed to administratively close this case; and
4. Petitioner be required to inform the court within thirty days of the completion of the exhaustion of state court remedies.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).