Opinion
No. CIV S-08-0178 FCD GGH P.
May 27, 2008
ORDER
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
Petitioner states that he has a habeas corpus petition currently pending in the California Supreme Court. In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005) the Supreme Court held that a district court may stay a petition containing both exhausted and unexhausted claims while the petitioner returns to state court to exhaust new claims when 1) good cause exists for petitioner's failure to exhaust; 2) petitioner's unexhausted claims are not plainly meritless; and 3) there is no indication that petitioner engaged in "abusive litigation tactics or intentional delay." 544 U.S. at 277-278, 125 S.Ct. 1528.
In order for the court to consider staying this action while petitioner litigates new claims in state court, petitioner must file an amended petition containing both his exhausted and his unexhausted claims now being raised in state court. He must also file a separate motion requesting that this action be stayed, addressing the three factors set forth above. If petitioner does not file an amended petition and motion to stay, this action will proceed on the exhausted claims raised in the original petition only. If petitioner later seeks to amend the petition to include the new claims once they are exhausted, they may be barred by the statute of limitations. 28 U.S.C. § 2244.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's application to proceed in forma pauperis is granted;
2. Petitioner is granted thirty days from the date of this order to file an amended petition containing his exhausted and unexhausted claims and a motion to stay this action.