Opinion
21-cv-07395-RMI
12-02-2021
DANIEL JOSE RUIZ, Petitioner, v. PATRICK COVELLO, Respondent.
ORDER
ROBERT M. ILLMAN, UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He also consented to the jurisdiction of a Magistrate Judge. dkt. 5. Petitioner indicates that a habeas petition is still pending in state court and he intends to seek a stay in this case. dkt 1 at 5. However, no motion for a stay has been filed.
The United States Supreme Court has held that a district court may stay mixed habeas petitions to allow the petitioner to exhaust in state court. Rhines v. Weber, 544 U.S. 269, 277-78 (2005). Rhines requires a petitioner to show (1) “good cause” for his failure to exhaust his claims in state court; (2) that his unexhausted claims are not “plainly meritless”; and (3) that he has not engaged in “intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278.
If petitioner seeks to stay this case, he must file a motion for a stay within twenty-one days of service of this order addressing the Rhines factors set forth above. Failure to file a motion for a stay may result in this petition being dismissed.
IT IS SO ORDERED. 1