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Riseley v. Warden, Pleasant Valley State Prison

United States District Court, E.D. California
Feb 6, 2006
No. CIV S-04-2417 DFL JFM P (E.D. Cal. Feb. 6, 2006)

Opinion

No. CIV S-04-2417 DFL JFM P.

February 6, 2006


ORDER


Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. On October 24, 2005, petitioner was ordered to file a motion to stay or file an amended petition within thirty days. On November 21, 2005, plaintiff filed a request to stay the instant action pending exhaustion of state remedies, noting that he has petitioned the Court of Appeals for the Ninth Circuit to review this court's decision that petitioner's claims are not exhausted. However, plaintiff's filing was not a motion, did not contain a declaration, and fails to set forth good cause for his failure to exhaust his claims earlier. By order filed April 25, 2005, plaintiff was advised that in his motion to stay, petitioner must also demonstrate that good cause existed for his failure to exhaust his sixth and seventh claims at the same time he exhausted his other claims. "Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 1535 (2005). Such a stay is appropriate when petitioner shows good cause for his failure to exhaust earlier and merit to the claims he is seeking to exhaust. Id., at 1535. Petitioner's filing does not demonstrate such good cause.

In an abundance of caution, petitioner will be provided one final opportunity in which to file a motion that complies with the requirements of Rhines, supra.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's November 21, 2005 request for stay is denied without prejudice;

2. Within twenty days from the date of this order, petitioner shall file a motion to stay these proceedings; said motion shall be briefed according to Local Rule 78-230(m) and shall address the question of petitioner's good cause for his failure to earlier exhaust his claims pursuant to Rhines, supra.


Summaries of

Riseley v. Warden, Pleasant Valley State Prison

United States District Court, E.D. California
Feb 6, 2006
No. CIV S-04-2417 DFL JFM P (E.D. Cal. Feb. 6, 2006)
Case details for

Riseley v. Warden, Pleasant Valley State Prison

Case Details

Full title:THOMAS F. RISELEY, Petitioner, v. WARDEN, PLEASANT VALLEY STATE PRISON…

Court:United States District Court, E.D. California

Date published: Feb 6, 2006

Citations

No. CIV S-04-2417 DFL JFM P (E.D. Cal. Feb. 6, 2006)