Opinion
No. CIV S-05-1313 LKK DAD P.
August 15, 2006
ORDER
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is petitioner's motion for a stay and abeyance. Respondents have filed a statement of non-opposition to the motion.
This is petitioner's second motion for a stay and abeyance. The court denied petitioner's first motion, filed on June 29, 2005, as vague and conclusory. In that order petitioner was advised that under Rhines v. Weber, 544 U.S. 269, 277 (2005), a petitioner moving for stay and abeyance was required to show good cause for the failure to exhaust his claims prior to the filing of the federal application, identify his unexhausted claims and demonstrate that each has potential merit, describe the status of state court proceedings and demonstrate that he has acted with diligence.
In his motion, petitioner indicates that he has presented one unexhausted claim concerning his aiding and abetting conviction, and that his state habeas petition presenting this claim was filed with the California Supreme Court on May 27, 2005. In their statement of non-opposition, respondents acknowledge that petitioner filed his federal habeas petition prematurely. In this regard respondents note that petitioner's state habeas petition was filed with the California Supreme Court more than three months before the one-year statute of limitations for filing a federal petition under 28 U.S.C. § 2244(d)(1) had expired and the statute is tolled while that petition is pending before the California Supreme Court. (Statement of Non-Opp'n at 1-2.)
The complicated procedure of filing a premature, "protective" petition in federal court along with a motion for stay and abeyance has been specifically endorsed by the Supreme Court for habeas petitioners in California. See Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005); see also Bonner v. Carey, 425 F.3d 1145, 1149 n. 20 (9th Cir. 2005).
In light of the above, the motion will be granted and petitioner will be ordered to file status reports on his pending case before the California Supreme Court, and to promptly file his amended federal petition following a decision from the California Supreme Court.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's February 13, 2006 motion for a stay and abeyance is granted;
2. This action is stayed;
3. The Clerk of the Court is directed to administratively close this case;
4. Petitioner shall file a status report on the first court day of every second month beginning with September 1, 2006, concerning the status of his California Supreme Court habeas proceedings; and
5. Petitioner shall file a motion to lift the stay and his amended petition, within thirty days after petitioner has received a decision on his habeas petition with the California Supreme Court; the status reports, motion, and amended petition shall reflect the case file number assigned to this case.