Blackgold v. Madden

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SUTEN BLACKGOLD, Case No.: 21-cv-1801 MMA (JLB)

12 Petitioner, ORDER DENYING REQUEST FOR STAY 13 v. AND ABEYANCE WITHOUT PREJUDICE TO RENEWAL UPON FILING OF FIRST 14 RAYMOND MADDEN, et al., AMENDED PETITION 15 Respondents. [Doc. No. 5] 16 17 18 On October 21, 2021, Petitioner, a state prisoner proceeding pro se, filed a Petition 19 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 along with a motion to proceed 20 in forma pauperis. See Doc. Nos. 1–2. On October 26, 2021, the Court issued an Order 21 granting Petitioner’s motion to proceed in forma pauperis and dismissing the Petition 22 without prejudice for failure to allege exhaustion of state judicial remedies and stated: “If 23 Petitioner wishes to proceed with this habeas action, Petitioner must file a First Amended 24 Petition that cures the pleading deficiencies outlined in this Order on or before December 25 27, 2021.” Doc. No. 3 at 4. 26 On November 16, 2021, nunc pro tunc to November 15, 2021, Petitioner filed a 27 document entitled “Requesting To Stay And Abeyence,” [sic] indicating he was aware of 28 1 ||the December 27, 2021 deadline to file a First Amended Petition and requesting a stay 2 ||and abeyance for purpose of exhausting state judicial remedies. Doc. No. 4 at 1. 3 The Court does not currently have jurisdiction to consider Petitioner’s request for 4 ||stay and abeyance of his federal proceedings because there is no Petition on file and the 5 has been dismissed without prejudice. The Court dismissed the Petition in the 6 || October 26, 2021, Order and Petitioner has not yet filed a First Amended Petition. 7 || Accordingly, the Court DENIES Petitioner’s request for stay and abeyance without 8 || prejudice to Petitioner renewing the request upon the filing of a First Amended Petition. 9 Because Petitioner has not identified an exhausted claim, in order to proceed with 10 habeas action, Petitioner may file a First Amended Petition on or before December 11 2021, along with a renewed request for stay and abeyance identifying which claims 12 || Petitioner seeks to exhaust in state court. See Rhines v. Weber, 544 U.S. 269, 277-78 13 ||(2005) (explaining that to warrant stay and abeyance, a habeas petitioner must 14 || demonstrate there are arguably meritorious claim(s) which he wishes to return to state 15 || court to exhaust, that he is diligently pursuing his state court remedies with respect to 16 those claim(s), and that good cause exists for his failure to timely exhaust his state court 17 ||remedies); see also Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (“[A] district court 18 the discretion to stay and hold in abeyance fully unexhausted petitions under the 19 circumstances set forth in Rhines.”). The Court therefore DIRECTS the Clerk of Court 20 mail Petitioner a blank Amended Petition for Writ of Habeas Corpus pursuant to 28 21 ||U.S.C § 2254 together with a copy of this Order. 22 IT IS SO ORDERED. 23 || Dated: November 17, 2021 24 MMaikul IM = /hickler 25 HON. MICHAEL M. ANELLO %6 United States District Judge 27 28 -2- 21-cv-1801-MMA (JLB)