(HC) Betz v. Anglea

Opinion

RICHARD BETZ, No. 2:19-cv-00681-MCE-CKD P Petitioner, v. ORDER Respondent. Petitioner is a state prisoner proceeding pro se and in forma pauperis in this federal habeas corpus action filed pursuant to 28 U.S.C. § 2254. On November 25, 2019, this court issued Findings and Recommendations that petitioner’s habeas application be dismissed without prejudice as it contained wholly unexhausted claims for relief. Petitioner filed objections to this recommendation on December 16, 2019. Liberally construing petitioner’s objections, he seeks a stay and abeyance of his federal habeas petition in order to return to state court to properly exhaust his federal claims for relief. In light of the serious consequences of dismissal as well as petitioner’s pro se status, the court will sua sponte order supplemental briefing on petitioner’s request for a stay and abeyance and the applicability of a Rhines stay in the present case. See Rhines v. Weber, 544 U.S. 269 (1995); see also Mena v. Long, 813 F.3d 907, 910-12 (9th Cir. 2016) (extending the Rhines stay and abeyance option to wholly unexhausted federal habeas petition). The court hereby grants petitioner leave to file supplemental objections to the Findings and Recommendation within 14 days from the date of this order addressing why a stay and abeyance under Rhines should be granted. Therein, petitioner shall address whether (1) good cause exists for his failure to have previously exhausted the claims in state court, (2) the claims at issue potentially have merit, and (3) petitioner has been diligent in pursuing relief. See Rhines, 544U.S. at 277-78. Respondent may file a response to the supplemental objections within 7 days from the date they are filed. Petitioner may file a reply brief within 7 days from the date of filing of respondent’s brief. The matter will be deemed submitted upon receipt of the supplemental briefs or the expiration of time for filing such briefs. The parties are advised that these filing dates are firm and no extensions of time will granted. Nothing in this order prevents petitioner from filing a habeas corpus petition in the California Supreme Court for exhaustion purposes. Should petitioner choose to do so, heshould promptly advise this court of any pending state court case and he should file a “Notice of Exhaustion” once he receives any state court ruling on the pending constitutional claims. Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner is granted leave to file supplemental objections within 14 days from the date of this order addressing why a stay and abeyance under Rhines should be granted. 2. Respondent may file a response to the supplemental objections within 7 days from the date they are filed. 3. Petitioner may file a reply brief within 7 days from the date of filing of respondent’s brief. Dated: December 18, 2019 bh rdf /f [ { gt UNITED STATES MAGISTRATE JUDGE 12/betz0681.suppbrief.docx