(HC) Rodriguez v. Fisher

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, Case No.: 3:21-cv-01395-JLS-AHG

12 Petitioner, ORDER SETTING BRIEFING 13 v. SCHEDULE ON PETITIONER’S MOTION FOR STAY 14 WARDEN FISHER,

15 Respondent. [ECF No. 9]

24 On August 23, 2021, Petitioner, a state prisoner proceeding pro se, filed a Petition 25 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the United States District Court 26 for the Eastern District of California. ECF No. 1. The matter was transferred to this Court 27 on August 4, 2021. ECF No. 2. This Court dismissed the action without prejudice on 28 1 August 18, 2021 because Petitioner had failed to satisfy the filing fee requirement. ECF 2 No. 5. On September 10, 2021, Petitioner filed a Motion to Proceed in forma pauperis, 3 which the Court granted on September 17, 2021. ECF Nos. 6, 7. 4 On September 20, 2021, Petitioner filed a Motion for Stay. ECF No. 9. Normally, a 5 petitioner requests a stay in a federal habeas corpus matter when he or she wishes to return 6 to state court to exhaust claims which are unexhausted at the time he or she files their 7 habeas corpus petition. In this motion, however, Petitioner asks to stay the proceedings in 8 this case as well as the proceedings in various state court matters but has not identified any 9 unexhausted claims that he wishes to exhaust in state court. 10 There are two kinds of stays available to Petitioner, the “stay and abeyance” 11 procedure and the withdrawal and abeyance” procedure. If Petitioner wishes to use the 12 “stay and abeyance” procedure he must demonstrate there are arguably meritorious claims 13 which he wishes to return to state court to exhaust, that he is diligently pursuing his state 14 court remedies with respect to those claims, and that good cause exists for his failure to 15 timely exhaust his state court remedies. Rhines v. Webber, 544 U.S. 269, 277–78 (2005). 16 If Petitioner wishes to use the “withdrawal and abeyance” procedure, he must 17 voluntarily withdraw any unexhausted claims, ask the Court to stay the proceedings and 18 hold the fully-exhausted petition in abeyance while he returns to state court to exhaust, and 19 then seek permission to amend his petition to include the newly exhausted claims after 20 exhaustion is complete. King v. Ryan, 564 F.3d 1133, 1141–42 (9th Cir. 2009). Although 21 under this procedure Petitioner is not required to demonstrate good cause for his failure to 22 timely exhaust, the newly exhausted claims must be either timely under the statute of 23 limitations or “relate back” to the claims in the fully-exhausted petition, that is, they must 24 share a “common core of operative facts” with the previously exhausted claims. Id. at 25 1142–43 (quoting Mayle v. Felix, 545 U.S. 644. 659 (2005)). 26 In order for this Court to determine whether a stay should be granted in this case, the 27 Court sets the following briefing schedule: 28 / / 1 (1) Petitioner must file, no later than November 15, 2021, a document entitled 2 ||“Supplemental Motion for Stay.” In this document, Petitioner must advise the Court 3 || whether he is seeking a stay pursuant to Rhines or King. If he is seeking a stay pursuant to 4 || Rhines, he must explain how he satisfies the Rhines factors. If he is seeking a stay pursuant 5 || to King, he must explain how he wishes to proceed within the King framework. 6 (2) Respondent must file, no later than December 15, 2021, a Response to 7 || Petitioner’s Supplemental Motion for Stay. 8 (3) Petitioner may file a Reply to the Response no later than January 14, 2022. 9 10 IT IS SO ORDERED. 11 ||Dated: September 23, 2021 _ □□ pbiormH. □□□ Honorable Allison H. Goddard 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28